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2019 Supreme(P&H) 2720
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Raj Mohan Singh, J.
Bharat Bhushan Jain - Appellant
Versus
Sudarshan Kumar Jain & Anr. - Respondents
Civil Revision No. 4842 of 2018 (O&M)
Decided On : 17-09-2019
Important Points
Subject
Civil Law - Jurisdiction and Interim Orders
Act Referred
SECURITISATION AND RECONSTRUCTION OF FINANCIAL ASSETS AND ENFORCEMENT OF SECURITY INTEREST ACT : S.17, S.35
Headnote
Rent Agreement - Jurisdiction of Civil Court - Section 17 of SARFAESI Act, 2002 - [Order 39 Rules 1 and 2 CPC, Vishal N. Kalsaria vs. Bank of India & Ors, State of Haryana and ors. vs. Vinod Kumar and ors., Tayabbhai M. Baaasarwalla vs. Hind Rubber Industries Pvt. Ltd., Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee]
Fact of the Case:
The plaintiff filed a suit for permanent injunction against the defendants to prevent illegal possession of the rented property. The defendants raised objections based on the jurisdiction of the civil court and the applicability of the SARFAESI Act.
Finding of the Court:
The Court held that the orders passed by the lower courts declaring the civil court to have no jurisdiction cannot be given effect at the stage of considering the application under Order 39 Rules 1 and 2 CPC. The Court emphasized that the issue of jurisdiction goes to the roots of the case and can be decided at the earliest, but does not instantly disable the Court from passing any interim order.
Issues: The main issues revolved around the jurisdiction of the civil court, the applicability of the SARFAESI Act, and the validity of the interim orders passed by the lower courts.
Ratio Decidendi: The Court relied on legal precedents to establish that objections to jurisdiction do not instantly disable the Court from passing interim orders, and that the issue of jurisdiction can be decided at the earliest stage of the case.
Final Decision: The Court set aside the impugned orders passed by the lower courts and remanded the case to the trial Court to decide the application under Order 39 Rules 1 and 2 CPC on merits. The Court also highlighted that there would be no bar for filing an application under Order 7 Rule 11 CPC in a pending case.
Mr. Amit Jain, Advocate, for the Appellant; Mr. Satish Jain, Advocate, Mr. Vikas Chatrath, Advocate and Mr. Khushkaran Kumar, Advocate, for the Respondent
JUDGMENT
Raj Mohan Singh. J. - Petitioner has laid challenge to the order dated 02.02.2018 passed by the Civil Judge (Jr. Divn.) Chandigarh and order dated 04.07.2018 passed by the Addl. District Judge, Chandigarh, whereby the application under Order 39 Rules 1 and 2 CPC was dismissed.
2. Brief facts are that the plaintiff/petitioner filed a suit for permanent injunction restraining the defendants/respondents from illegally taking possession of two rooms with attached bathroom on the ground floor of the house in question except in due course of law. Plaintiff/petitioner claimed himself to be a tenant in the property vide rent note dated 01.11.2010, followed by another rent agreement dated 01.06.2014. Petitioner pleaded that he was paying the rent regularly from the very inception of the tenancy against receipts to respondent No.1. The plaintiff has been running his office in the demised premises since 01.11.2010. The suit came to be filed when the respondents started threatening the plaintiff to dispossess him in an illegal manner.
3. Record of the case would show that a mortgage was created in the year 2012 by the owner in favour of respondent No.2-Bank. The grievance of the petitioner before the Courts below was that in view of Vishal N. Kalsaria vs. Bank of India & Ors, (2016) 1 R.C.R. (Civil) 911, the tenancy was protected because once tenancy was created, a tenant can be evicted only after following the due process of law under the Rent Act. The tenant cannot be evicted forcibly by use of provisions of SARFAESI Act. The suit was filed after the amendment in Section 17 of the SARFAESI Act, wherein Section 4-A was inserted in Section 17 of 2002 Act w.e.f. 01.09.2016..
4. Learned counsel for the petitioner submitted that case of the petitioner does not fall under clauses 1(a) to 1(d) and Sub-section 4-A and Section 17 of 2002 Act. The amendment in question has not taken away the jurisdiction of civil Court. Only an additional remedy has been provided because earlier there was no provision for the tenant to approach the Debt Recovery Tribunal. In support of his contention, learned counsel relied upon State of Haryana and ors. vs. Vinod Kumar and ors.. (1986) 1 PLR 222 (Full Bench) and Gurbax Singh vs. Financial Commissioner and another, 1991 PLJ 190 and Vishal N. Kalsaria's case (supra).
5. Learned counsel further submitted that the amendment in the Act is not mandatory for the tenant to approach Debt Recovery Tribunal as the statutory right vested in the tenant cannot be bulldozed by such amendment and even by non-obstinate clause in Section 35 of the SARFAESI Act.
6. Learned counsel further submitted that case law viz. CR No.693 of 2018 titled 'State Bank of India vs. Sonia Saini and others', decided on 24.05.2018: CR No.8144 of 2017 titled 'Maan Mohan vs. Kamal Parkash Goyal and others' decided on 20.02.2018; CR No.8286 of 2018 titled Dil Bahadur vs. Vijay Kapoor and others', decided on 05.12.2018 and CR No.2996 of 2018 titled 'Manoj Kumar vs. State Bank of India and another' decided on 07.05.2018 are distinguishable as in those cases the orders were passed on the application under Order 7 Rule 11 CPC holding that the civil suit is barred. In the instant case, no application was filed under Order 7 Rule 11 CPC. Both the Courts below have proceeded to consider the application under Order 39 Rules 1 and 2 CPC and, therefore, the first stage has already passed. The second stage would be either to get the issue framed in respect of jurisdiction of the Court or the issue can be decided at the last stage. Both the Courts are not justified in declaring the suit to be barred by jurisdiction of the civil court on the stage of consideration of application under Order 39 Rules 1 and 2 CPC.
7. As against this learned counsel for the respondents by relying upon RSA No.6184 of 2017 titled Shakti Trading Co. vs. Kailashwanti and another', decided on 18.01.2018; ICICI Bank Limited vs. Krishna Kumar Bishnoi and others., (2018) 2 DNJ 622 (Rajastha
