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2020 Supreme(Mad) 1785
IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. Jayachandran, J.
Bharat Petroleum Corporation Ltd., Rep. by its General Manager, Chennai & Others – Appellants
Versus
P. Umapathy & Others – Respondents
C.R.P.(PD). No. 1176 of 2018 & C.M.P. No. 6062 of 2018
Decided On : 22-12-2020
Advocate Appeared:
For the Appellant :M.S. Krishnan, Senior Counsel, N.R. Anantha Ramakrishnan, Advocate.
For the Respondent:V. Ravi, Advocate.
The subsequent suit for recovery of possession is not barred by Order II Rule 2(3) of C.P.C as the cause of action for the prior suit and the subsequent suit are different.
Headnote:
Order II Rule 2 (3) - Recovery of Possession - Order II Rule 2 (3) of C.P.C - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Order II Rule 2 (3) of C.P.C and its interpretation in the context of the cause of action for the suit for recovery of damages and the subsequent suit for recovery of possession. The court also referred to the judgment in M/s.Virgo Industries (Eng) Private Limited -vs- M/s.Venture Tech Solutions Private Limited reported in (2013) 1 SCC 625 and distinguished the facts of the present case from the facts involved in the Virgo case. The court also referred to the Constitution Bench judgment in Gurbux Singh -vs- Bhooralal reported in (1964 (7) SCR 831) to establish the precise cause of action upon which the previous suit was filed. The court also discussed the explanation and illustration of Order II Rule 2 (3) C.P.C along with the State Amendment by Uttar Pradesh to interpret the main provision.
Fact of the Case:
The respondents filed a suit for recovery of possession of a leased property against the revision petitioners. The revision petitioners, as defendants, filed an application to reject the plaint alleging that the suit is barred by Order II Rule 2 (3) of C.P.C. The Trial Court dismissed the application, and the Revision Petition was filed under Article 227 of the Indian Constitution by the defendants.
Finding of the Court:
The Court found that the subsequent suit for recovery of possession is not hit by Order II Rule 2(3) of C.P.C as the cause of action for the prior suit for damages and the subsequent suit for recovery of possession are different. The Court also held that the reply expressing desire to renew the lease did not give cause of action to file the suit for recovery of possession prior to the specified date in the quit notice.
Issues: The issues involved the interpretation of Order II Rule 2 (3) of C.P.C and the determination of the cause of action for the prior suit and the subsequent suit.
Ratio Decidendi: The Court held that the subsequent suit for recovery of possession is not barred by Order II Rule 2(3) of C.P.C as the cause of action for the prior suit and the subsequent suit are different. The Court also emphasized the need to establish the precise cause of action upon which the previous suit was filed to apply the bar under Order II Rule 2(3) of C.P.C.
Final Decision: The Civil Revision Petition was dismissed with the direction to the Trial Court to take up the trial in O.S.No.50/2015 on a priority basis and complete the trial preferably within 4 months from the date of receipt of the order copy.
JUDGMENT :
(Prayer: Civil Revision Petition is filed under Article 227 of Constitution of India against the fair and decreetal order dated 24.10.2017 passed in I.A.No.279 of 2016 in O.S.No.50 of 2015 on the file of the Subordinate Court, Ponneri.)
(The case has been heard through video conference)
1. The respondents herein filed the Suit in O.S.No.50 of 2015 on the file of Subordinate Court at Ponneri, for recovery of possession. The revision petitioners herein as defendants filed I.A.No.279 of 2016 and prayed to reject the plaint alleging the suit is barred by Order II Rule 2 (3) of C.P.C. The Trial Court, after considering the submissions of both side, dismissed the interlocutory application holding that the application is misconstrued and not maintainable. Challenging the said order, the Revision Petition is filed under Article 227 of the Indian Constitution by the defendants.
2. The revision petitioner is one of the Public Sector Undertaking having its outlets across the Country. One Mr.S.K.Kannaiah Naidu the predecessor-in-title of the suit property leased out the suit land to M/s. Burmah Shell Oil Storage and Distributing Company India Limited for 30 years lease commencing from 01.11.1963 under a registered document No.444 of 1963 registered at the Office of Sub-Registrar at Sembium. Later, M/s.Burmah Shell Oil Storage and Distributing Company India Limited merged with M/s.Bharat Petroleum Corporation Ltd and Mr.S.K.Kannaiah Naidu died during the pendency of lease period. His legal heirs authorised Smt.Sarawathi ammal, the widow of S.K.Kannaiah Naidu, to receive the rent and same was paid to her. The respondents herein as the legal heirs of S.K.Kanniah Naidu, after the demise of Saraswathi became the landowners. When the lease period expired in the year 1993, based on the automatic renewal clause, the revision petitioner initially filed a suit for specific performance in O.S.No.340 of 1997 before the District Munsif Court at Thiruvothiyur. The said suit was dismissed on 14.07.2009. As leasee holding over, the revision petitioners continue to occupy the leased premises. After the demise of Saraswathi ammal on 06.10.2009, one of the legal heirs S.K.Paramanadham offered renewal of lease for 30 years commencing from 01.01.2012 to 31.12.2041 on a monthly rent of Rs.66,000/- with 20% increase every 5th years. This offer did not fructify into a concluded contract. The landowners, who are the respondents herein caused quit notice demanding the revision petitioners to vacate the property and handover the vacant possession on or before 31.12.2014. On receipt of the notice, the revision petitioners have sent a reply dated 07.07.2014 expressing their desire to renew the lease.
3. Narrating all these fact, the respondents herein first filed a suit C.S.No.626/2014 before The High Court of Judicature at Madras on its Civil Original side, for past and future damages at the rate of Rs.66,000/- per month from 01.01.2012 the date from which the revision petitioners agreed to pay rent at Rs.66,000/- per month, till 31.05.2014 and thereafter, at a rate of Rs.4,00,000/- per month, being the estimated market rate of rent.
4. In the plaint at paragraph No.14, the plaintiffs (the respondents herein) had stated that the suit for damages filed reserving the right to initiate legal proceedings for recovery of possession of the property, in case the defendants (the revision petitioner herein) fail to surrender possession of the leased property. Thereafter, the suit in O.S.No.50 of 2015 filed at the Sub-court in Ponneri, for recovery of possession by the landowners.
5. On receipt of the suit summons, the revision petitioners filed petition to reject the plaint. I.A.No.279 of 2016 filed alleging that though in C.S.No.626 of 2014 the respondents have stated that they reserve their right to file suit for recovery of possession, no leave was granted by High Court. On the date of filing C.S.No.626 of 2014 for damages, the plaintiffs were also entitled for the re
