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High Court Of Delhi
MEC INDIA PRIVATE LIMITED - Appellant
Versus
LT.COL.HARJEET SINGH - Respondent
Civil Writ 102 of 1999
Decided On : 05/28/1999
Whether a fresh suit is maintainable between the same parties for the same cause of action for the same property when an earlier suit has been dismissed by the competent Court between the same parties for the same cause of action and in relation to the same property.
Fact of the Case:
The premises were leased out on 1.4.1982 for a fixed term of three years to M/s. M.H.C. (India) Private Ltd. , the petitioner-tenant at a monthly rent of Rs. 4,500/ - Lease Deed dated 1.4.1982 was executed but the same was not registered. In May, 1985 the rent was increased by 10% from Rs. 4,500.00 to Rs. 4,950.00. It is common case of the parties that the purpose of the lease was commercial, the premises are also situated in what is a commercial multi-storeyed building on Barakhamba Road, New Delhi, and that there is no registered instrument of lease either for the original grant of 1982 for three years, for any later or renewed term. Till 30.11.1988, the tenancy of the petitioner was protected under the Delhi Rent Control Act. That protection, ceased to be available to the tenant with effect from 1.12.1998. This was because Section 3 (c) was inserted in the Delhi Rent Control Act, and the Rent Act was no longer applicable. The relationship between the parties came to be governed solely by the Transfer of Property Act, 1882. It is also common case of the parties that notice to quit dated 16.8.1991 was served by the landlord upon the tenant whereafter on 12.7.1991, Suit No. 306 of 1991 for ejectment of the tenant (petitioner herein) was filed. Summons in the suit were served and after the defendant-tenant had entered appearance, that suit for ejectment was dismissed for default of plaintiff’s appearance on 23.9.1993 by the Court of Ms. Mamta Singla, Sub-Judge, 1st Class, Delhi. Instead of applying for restoration under Order 9, Rule 9, CPC, the plaintiff- landlords opted to take another route. They served a fresh notice to quit dated 6.8.1996 and another dated 15.10.1996 upon the tenant. Thereafter on 18.11.1996 a fresh suit for ejectment was filed and was registered as Suit No. 373 of 1996. In this suit, the defendant- tenant (petitioner before me) filed an application under Order 7, Rule II, Civil Procedure Code dated 14.5.1997 asking for rejection of the plaint inter alia on the ground that this suit being a second suit on the same cause of action, was barred under Rule 9 of Order 9, CPC.
Finding of the Court:
The court held that a fresh suit for ejectment is maintainable between the same parties for the same cause of action for the same property when an earlier suit has been dismissed by the competent Court between the same parties for the same cause of action and in relation to the same property. The court found that the dismissal of the previous suit for ejectment would not bar a later suit based on a fresh notice to quit, and that a landlord can serve a fresh notice to quit and after waiting for the expiry of the period thereof, bring a suit for ejectment.
Issues: Whether a fresh suit is maintainable between the same parties for the same cause of action for the same property when an earlier suit has been dismissed by the competent Court between the same parties for the same cause of action and in relation to the same property.
Ratio Decidendi: The court held that the dismissal of a previous suit for ejectment would not bar a later suit based on a fresh notice to quit, and that a landlord can serve a fresh notice to quit and after waiting for the expiry of the period thereof, bring a suit for ejectment. The court reasoned that the cause of action in a suit for ejectment is the factum or otherwise of the expiry of tenancy either by efflux of time or by service of a notice to quit expiring with the end of a particular tenancy month and there being no assent to continuation or waiver of the quit notice. Once that is established, the right of the landlord to take possession of the premises from the tenant whose status is of one at sufferance, follows.
Final Decision: The court dismissed the civil revision petition, upholding the order of the learned ADJ.
( 1 ) THIS Civil Revision raises an interesting question of law with regard to landlord-tenant relationship in the post Rent Act era.
( 2 ) PREMISES No. L-3 Kanchanjunga, 18 Barakhamba Road, New Delhi, being aloft (upper ground floor) premises measuring 783 square feet and owned by the respondents Lt. Col Inder Maira and Others, were leased out on 1. 4. 1982 for a fixed term of three years to M/s. M. H. C. (India) Private Ltd. , the petitioner-tenant at a monthly rent of Rs. 4,500/ - Lease Deed dated 1. 4. 1982 was executed but the same was not registered. In May, 1985 the rent was increased by 10% from Rs. 4,500. 00 to Rs. 4,950. 00. It is common case of the parties that the purpose of the lease was commercial, the premises are also situated in what is a commercial multi-storeyed building on Barakhamba Road, New Delhi, and that there is no registered instrument of lease either for the original grant of 1982 for three years, for any later or renewed term.
( 3 ) TILL 30. 11. 1988, the tenancy of the petitioner was protected under the Delhi Rent Control Act. That protection, ceased to be available to the tenant with effect from 1. 12. 1998. This was because Section 3 (c) was inserted in the Delhi Rent Control Act, and the Rent Act was no longer applicable. The relationship between the parties came to be governed solely by the Transfer of Property Act, 1882. It is also common case of the parties that notice to quit dated 16. 8. 1991 was served by the landlord upon the tenant whereafter on 12. 7. 1991, Suit No. 306 of 1991 for ejectment of the tenant (petitioner herein) was filed. Summons in the suit were served and after the defendant-tenant had entered appearance, that suit for ejectment was dismissed for default of plaintiff s appearance on 23. 9. 1993 by the Court of Ms. Mamta Singla, Sub-Judge, 1st Class, Delhi.
( 4 ) INSTEAD of applying for restoration under Order 9, Rule 9, CPC, the plaintiff- landlords opted to take another route. They served a fresh notice to quit dated 6. 8. 1996 and another dated 15. 10. 1996 upon the tenant. Thereafter on 18. 11. 1996 a fresh suit for ejectment was filed and was registered as Suit No. 373 of 1996. In this suit, the defendant- tenant (petitioner before me) filed an application under Order 7, Rule II, Civil Procedure Code dated 14. 5. 1997 asking for rejection of the plaint inter alia on the ground that this suit being a second suit on the same cause of action, was barred under Rule 9 of Order 9, CPC.
( 5 ) BY order dated 27. 11. 1998 Mr. B. S. Chaudhary, ADJ dismissed the application. The learned Additional District Judge held :
"i have considered the arguments advanced on behalf of both the parties. Admittedly, the earlier suit filed by the plaintiffs before the Civil Judge had been dismissed in default and not on the merits of the case. Thereafter on service of subsequent notice of termination under Section 106, T. P. Act, the instant suit before this Court has been filed. Fresh cause of action thus accrued to the plaintiff after service of subsequent notice u/sec. 106, T. P. Act and thus there was no bar for filing the fresh suit for possession. The other submissions made on behalf of die defendant regarding creation of some oral agreement to the effect that the defendant-company continued as month-to- month (sic) tenant and that the tenancy had to be extended for a period of 60 years from 1. 4. 1986 onwards which fact has been denied by the plaintiff in toto, relate to the matter to be adjudicated upon the merits of the case after both the parties put their respective pleadings and not at this stage merely on the averments of the parties. I thus dismiss the application under disposal. "
( 6 ) IN this Civil revision No. 102 of 1999 filed by the defendant-tenant on 21. 1. 1999, this is the order that is assailed. The petitioner submits that a substantial question of law arises for consideration in this Civil Revision, which he formulates in the following words:
"whether a fr
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