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Lalla Ram Vs. Naresh Chand and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 53 of 1951
Judge
Reported inAIR1952HP28
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 2, Rule 2; ;East Punjab Urban Rent Restriction Act, 1949 - Sections 4 and 6(1)
AppellantLalla Ram
RespondentNaresh Chand and anr.
Appellant Advocate K.C. Pandit, Adv.
Respondent Advocate C.L. Puri, Adv. for Respondent No. 1
DispositionRevision dismissed
Cases ReferredElectric & Motor Works v. Picture Palace
Excerpt:
- .....the tenants of the shop, filed an application before the controller for determination of fair rent of the shop under section 4 of the east punjab urban rent restriction act (iii (3) of 1949), and the suits were stayed. the controller decided the tenants' aforesaid applications on 23-2-1951 and fixed rs. 130/- per annum as the fair rent of the shop, and this amount was modified to rs. 137/8/- per annum on 22-5-1951 by the district judge acting as appellate authority under section 15 of the said act. on 17-3-1951, i.e. after the disposal of the aforesaid application by the rent controller on 28-2-1951, but before the decision of the appellate authority dated 22-5-1951, the subordinate judge disposed of the two rent suits, decreeing the first one for rs. 21/4/- on the basis of the.....
Judgment:
ORDER

Chowdhry, J.C.

1. This is a defendant's application for revision of the judgment and decree dated 11-6-1951 of the learned District Judge of Mahasu and Sirmur.

2. The plaintiff-respondent filed two suits on one and the same date, 27-9-1950, in the Court of the Subordinate Judge of Solan for recovery of sums of money due as arrears of rent in respect of a shop, one for Rs. 125/- for the period 1-1-1948 to 31-12-1948, and the other for Rs. 500/-for the period 1-1-1949 to 31-12-1950, at Rs. 250/-per annum, on foot of an agreement dated 22-3-1948. The former was registered as suit No. 87/1 and the latter as suit No. 88/1 of 1950 in the Register of Civil Suits of that Court. During the pendency of the two suits the defendants, the tenants of the shop, filed an application before the Controller for determination of fair rent of the shop under Section 4 of the East Punjab Urban Rent Restriction Act (III (3) of 1949), and the suits were stayed. The Controller decided the tenants' aforesaid applications on 23-2-1951 and fixed Rs. 130/- per annum as the fair rent of the shop, and this amount was modified to Rs. 137/8/- per annum on 22-5-1951 by the District Judge acting as appellate authority under Section 15 of the said Act. On 17-3-1951, i.e. after the disposal of the aforesaid application by the Rent Controller on 28-2-1951, but before the decision of the appellate authority dated 22-5-1951, the Subordinate Judge disposed of the two rent suits, decreeing the first one for Rs. 21/4/- on the basis of the fair rent fixed by the Controller but dismissing the second as barred under Order 2, Rule 2(2), C. P. Code. It may be stated here that the Subordinate Judge of Solan had pecuniary jurisdiction to try suits upto Rs. 500/- only. The plaintill filed two appeals, one in the Court of the Senior Subordinate Judge against the judgment and decree of the Subordinate Judge in suit No. 87/1, and the other in the Court of the District Judge against the judgment and decree in suit No. 88/1. The District Judge transferred the former appeal to his own Court and disposed of both the appeals by a single judgment dated 11-6-1951, against which the present revision has been filed. The learned District Judge decreed each of the two suits 'in toto' holding that the plaintiff was entitled to recover the rent at the agreed rate as the Controller's decision had no retrospective effect, and that the second suit was not barred under Order 2 Rule 2(2), C. P. Code, since the two suits had been filed simultaneously.

3. There was a preliminary objection taken by the learned counsel for the plaintiff-respondent that the revision was not competent. In order to understand the true import of this objection it is necessary to dispose of the aforesaid two questions of law which form the basis of the decision of the lower appellate Court. I have therefore to follow this course even though in the result my views on the aforesaid questions of law might amount merely to 'obiter dicta'. I am inclined all the more to express my views on the said question of law, even though those views be 'obiter dicta' so far as the present suits are concerned, because an, authoritative pronouncement on those questtions, especially on the one under the East Punjab Urban Rent Restriction Act, for the guidance of the Courts in this State is urgently called for to obviate mistakes in future.

4. I would take up first the question whether the second suit was barred under Order 2 Rule 2(2), C. P. Code. Order 2 contains rules relating to the frame of Suit. The first rule is that every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. And, as held in 'AIR (2) 1915 Mad 319 (sic.),' the penalty for non-compliance with this rule is provided partly by Explanation IV to Section 11, and partly by Order 2 Rule 2, C. P. Code. In the present case we are concerned with the latter provision, which runs as follows:

'Rule 2. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted.

Explanation: For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.'

This rule penalises two ways of transgression of the aforesaid first rule where cause of action is one and the same, one by splitting of claims and the other by splitting of reliefs. The present case is concerned with only the splitting of claim since, as already seen, the plaintiff filed two suits in respect Of the arrears of rent that had fallen due to him upto the suit date. The gist of the relevant law, contained in sub-rules (1) and (2) of this rule, is that, except that a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court, every suit shall include the whole of the claim which he is entitled to make in respect of a cause of action, and that intentional omission to sue for a portion of such a claim debars him from afterwards doing so. The learned counsel for the petitioner cited 'SHER ALI MRIDHA v. Torap Ali,' AIR (29) 1942 Cal 407, for determination of the meaning of the words 'cause of action' in this rule. This was, however, wholly unnecessary inasmuch as this was a case of 'successive claims arising under the same obligation' and therefore constituting but one cause of action under the Explanation to the said rule. That sums due as arrears of rent for successive periods upto the suit date amount to successive claims arising under the same obligation, and that therefore omission to sue in respect of a portion of the claim will bar a subsequent suit for its recovery, has been further clarified by the illustration appended to the rule. The point is so clear that it hardly needs any support from authorities, but reference may be made to 'PHANI BHUSAN v. Rajendra Nandau' AIR (34) 1947 Cal 11, 'JIBAN KRISHNA v. Santimoyee Devi', AIR (35) 1948 Cal 366 and 'NARBADESHWARI PRASAD v. Sahib Singh', AIR (38) 1951 All 561. It follows therefore that the plaintiff-respondent was not entitled to split his claim, and that his second suit for recovery of Rs. 500/- was barred under Order 2 Rule 2(2).

5. The lower appellate Court has however held that the said rule had not been contravened because the two suits were filed simultaneously. It further observed that the proper procedure which the trial Court should have followed was to consolidate the two suits and, as the value of the consolidated suits would have exceeded his pecuniary jurisdiction, to have referred the cases to the appellate Court for their transference to a Court of competent jurisdiction. And in support of this view reliance was placed, upon 'GANESH RAMCHANDRA v. Gopal Lakshman', AIR (30) 1943 Bom 12. Relying upon an earlier decision of the same Court, it was held in this case that if suits are filed simultaneously there is no contravention of the part of the aforesaid rule which prohibits a plaintiff from afterwards suing for a relief omitted in a former suit. It appears that two suits in respect of immovable properties arising out of the same cause of action, one numbered as suit No. 154 of 1934 and the other as suit No. 155 of 1934, were filed on one and the same day in the same Court. The reasoning upon which the aforesaid decision was made was expressed by Macklin J. in the following words: 'Without going so far as to say that in the case of suits filed simultaneously as these have been the penalty provided by sub-rule (2) should never be applied and one or the other of the suits should never be dismissed merely on that ground, we nevertheless think that in this case the suit ought not to have been dismissed. It would have been possible to consolidate the two suits, as any Court has the power to do in its inherent jurisdiction: see 'QAZI SYED MUHAMMUD AFZAR v. Man Kumar', 1 Pat 669, and, in fact, they were tried together, and the material issues in the two suits were the same. For practical purposes, they were treated as only one suit; and J say this in spite of the fact that one of them was triable as a second class suit, and the appeal went to the District. Court instead of to the High Court.' It may be stated here in passing that, unlike the present case, the two suits referred to in the Bombay ruling were filed in the Court of the higher pecuniary jurisdiction which could have disposed of both the suits after consolidating them. The ratio upon which the decision in that case was based does not therefore apply, for the value of the consolidated suits would have exceeded the pecuniary jurisdiction of the Subordinate Judge of Solan. That was why the. Subordinate Judge tried them separately. According to the Bombay ruling itself, therefore, the present is not one of those cases in which the penalty provided by sub-rule (2) should not be applied.

6. Interpreting the word 'afterwards' in Sub-rule (2) it has been held in 'RAYALU AYYAR v. Ramudu Ayyar', AIR (13) 1926 Mad 934, that even if the numbering of suits by a Court officer be 'prima facie' evidence of the respective dates of admission, that does not determine that the suit bearing the later number was 'afterwards' launched within the meaning of Order 2 Rule 2, which contemplates a later proceeding in the real sense. In laying down this view the learned Judges of the Madras High Court differed from the view expressed in the Full Bench ruling of the Allahabad High Court reported as 'MURTI v. Bhola Ram', 16 All 165 (FB). It was held in the Allahabad ruling that where two suits are filed on the same day it must be presumed, until the contrary is proved (which has not been done in the present case), that the suits were presented and admitted in the order in which their numbers appear in the Register of Civil Suits. It was held by the learned Judges of the Madras High Court that it is open to the plaintiff to elect as to which of the two suits instituted by him together on the same day shall be held to be barred by the operation of Order 2 Rule 2. In the first place, no such election was made by the plaintiff-respondent in the present case, and, in the next place, the matter should not in my opinion be left to the election of the plaintiff in every case. On the contrary, the matter should be made the subject matter of proof, and, if the plaintiff wishes to show that one of the two suits was filed before the other, the burden must be cast upon him to prove the fact. The question of election should properly arise only where the plaintiff not only alleges but also proves that both the plaints were presented simultaneously. Where, however, there is no evidence forthcoming on the aforesaid points, as is the case here, it must be presumed, as held in the Allahabad case, that the suits were presented and admitted in the order in which their numbers appear in the Register of Civil Suits, On this view the suit for recovery of Rs. 500/- which was given a subsequent number in the Register of Civil Suits, must be held to be a later suit for purposes of sub-rule (2). It may be stated here that the Allahabad view was also followed by the Rangoon High Court in 'STANDARD Electric & Motor Works v. Picture Palace', AIR (11) 1924 Rang 161 (2), although the bar of Order 2 Rule 2 was held not to apply on the ground of consolidation. It has already been seen that the principle of consolidation cannot be applied in the present case.

7. It may be further observed in this connection that the purpose of filing the two suits, as stated by the lower appellate Court, was to bring the matter within the pecuniary jurisdiction of the Subordinate Judge of Solan. It was observed by the learned Judges of the Allahabad High Court that to allow the plaintiffs to split their claims would be to 'open the door to deliberate and continual evasion of the provisions and the spirit of S. 43 of the Code of Civil Procedure (the corresponding provision in the Code of 1882).' The present is an illustration in point of such a deliberate evasion, and a plaintiff should not be allowed to take advantage of it. It is to be noted that under sub-rule (1) of rule 2 in order to bring his su.it within the jurisdiction of a particular Court the plaintiff has to relinquish a portion of his claim. It would amount to a fraud upon this provision were he be allowed to split his claim and bring more suits than one in respect of the same in a Court of his choice. For all the above reasons, I am clearly Of the opinion that the Bombay ruling relied upon by the lower appellate Court has no application to the facts of the present case, and that suit No. 88/1 of 1950 for recovery of Rs. 500/- which, in the absence of any evidence to the contrary, should be held to be the later suit, was barred by Order 2, Rule 2(2), Civil Procedure Code.

8. The decision of the learned District Judge on the other legal question is equally unsustainable. Section 4 of the said Act provides for the fixation of fair rent by the Controller on the application of the tenant or the landlord. Section 5 provides against further increase in such fair rent except under certain conditions specified therein. Section 6 then lays down that, save as provided in S. 5, when the Controller has fixed the fair rent the landlord shall not claim or receive any premium or other like sum or any rent in excess of the fair rent, and that any agreement for the payment of any sum in addition to or of rent in excess of such fair rent shall be null and void. The next relevant provision is contained in S. 8 which lays down that where any sum has, whether before Or after the commencement of the Act, been paid which is by reason of its provisions irrecoverable, it shall, within a certain period of limitation, be recoverable by the tenant from the landlord. It follows from these provisions that once the Controller has fixed the fair rent not only is the landlord debarred under Section 6 from receiving any sum in excess of it but he is also liable, subject to the claim being made by the tenant within a certain period of limitation to disgorge any such excess received by him in the past. And since the claim of the landlord referred to in S. 6 and the irrecoverable sum mentioned in S. 8 may relate to a period before the fixation of fair rent by the Controller under Section 4, it is further clear that the determination of fair rent by the Controller under Section 4 is capable of having a retros pective effect. The position has been further emphasized by the provision under Section 6 already referred to, namely, that any agreement for the payment of any sum in addition to rent or of rent in excess of such fair rent shall be null and void. The only condition precedent to the bar against any future recovery of a sum in excess of fair rent, or to the restoration by the landlord of any such excess received by him in the past, is that the determination of fair rent by the Controller under Section 4 should have already been made. This condition has been fulfilled in the present case, as already shown. That being so, the landlord was debarred under Section 6(1) (a) from claiming or even receiving any rent in excess of fair rent. The learned District Judge therefore went clearly against the mandatory provisions of S. 6 by granting to the landlord a decree for receiving rent in excess of the fair rent already fixed by the Controller and by giving effect to an agreement which had become null and void. J am supported in this view, if any support is at all needed in view of the clear provisions of the Act, by the following decisions: 'CHANDRA NARAIN v. D. N. Dhawan', AIR (37) 1950 Ajmer, 78; 'Dr. SUBBA RAO v. Deviji Govindji', AIR (37) 1950 Mad 555 and 'DULHANMAL RIZUMAL v. Abdul Kadar', A I R (37) 1950 Madh. B. 8. All these rulings proceeded on an interpretation of corresponding provisions in the Acts applicable to their respective States.

9. The learned District Judge purports to have followed an unreported decision of the Punjab High Court in 'SHIV SHANKER v. G. D. Khanna & Sons', Civil Revn No. 340 of 1948. A copy of that judgment has been supplied to me by the learned counsel for the plaintiff-respondent. It appears that in that case an enhanced rent was fixed by the Controller as from a certain date on the landlord's application for determination of fair rent under Section 4 of the Punjab Urban Rent Restriction Act (VI (6) of 1947), and that in a suit filed by him against the tenant for recovery of certain arreas of rent it was held that the Rent, Controller could not give retrospective effect to his order and therefore arrears of rent at the enhanced rate could only be calculated from the date of the Controller's order. For reasons recorded above I am unable, with all respect, to agree with the above view. There is no doubt that it is not within the province of the Controller to give effect to his order from any particular date, retrospective or prospective, for all that he is required to do u/s. 4 of the 1949 OF the 1947 Act is to determine the fair rent after taking into consideration certain facts mentioned in the section. Once the Controller has determined the fair rent the question of whether that rent is applicable to any particular period of time can only arise for determination in a suit in respect of rent between the landlord and the tenant, and the question will then be decided on a correct application of Sections 6 and 8 to the facts of the case. So far therefore as the ruling purports to lay down that a Rent Controller cannot give a retrospective effect to his order I am in agreement with it; but I do not (sic) the Controller's order have a retrospective effect. The learned District Judge therefore fell into an error in basing his decision on this unreported ruling of the Punjab High Court.

10. That, the learned District Judge hascome to wrong conclusions on both the abovequestions of law does not, however, help thedefendant-petitioner, for the aforesaid preliminary objection taken by the learned counselfor the plaintiff-respondent that the saiderroneous decisions do not justify an interference by this Court in exercise of its revisional jurisdiction is well-founded. In support ofhis objection he cited the Privy Council rulingreported as 'VENKATAGIRI v. H.R.E. BoardMadras', AIR (36) 1949 P. C. 156. This rulingand certain other Privy Council rulings referred to therein were reviewed by me in 'BEGRAM v. Charan Das,' AIR (38) 1951 Him Pr 16,and it cannot certainly be held, in accordancewith the observations made by me in that case,that in arriving at the said erroneous conclusions of law the learned District Judge merelyacted with material irregularity in exercise ofhis jurisdiction. The reason for this view is,as held in 'ABDUL MAJID v. Daleep Singh,'AIR (36) 1949 All 744, that the arriving at aconclusion or decision is a mental operation andthe Court cannot be said to be acting in socorning to a conclusion or decision on a question of law or fact. And so far as arriving at aconclusion or decision is concerned, whetherthe lower appellate Court decided the questions rightly or wrongly it had jurisdiction todo so, and even if it decided wrongly it cannotbe said to have acted with material irregularityin the exercise of its jurisdiction. Allowingthe preliminary objection, therefore, I hold thatthis revision is incompetent, and I hereby reject it. In the particular circumstances of theease, I make no order as to the costs of thisrevision.


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