JUDGMENT :

Ajit Kumar, J.

1. Heard Sri Rakesh Pande, learned Senior Counsel assisted by Ms. Shreya Gupta, learned counsel for the petitioner and Sri S.K. Varma, learned Senior Counsel assisted by Sri Bipin Lal Srivastava, learned counsel for the contesting respondents and learned Standing Counsel for the State.

2. By invoking the power of superintendence of this Court under Article 227 of the Constitution of India, the petitioner has questioned the propriety and legality of the order passed by the Additional Civil Judge (Senior Division), Court No.4, Muzaffarnagar dated 13th May, 2019 in rejecting the application of the petitioner bearing Paper No.- 43-C filed under Order VII Rule 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'C.P.C.').

3. Briefly stated the facts of the case are that the contesting respondents and the petitioner entered into the some agreement whereunder the premises in question were leased out on rent to be paid as per the terms and agreement reached between the parties. It appears that there arose some dispute regarding dues of rent and consequently arrears which the plaintiffs-respondents claimed to have remained unpaid for long compelling them to institute a suit seeking a relief for recovery of dues in terms of rent as well as interest thereupon for delayed payment. The suit was instituted on 16th October, 2018 and was registered as O.S. No.- 575 of 2018. From the perusal of relief clause of plaint it transpires that a sum of Rs.22,51,565/- was claimed towards arrears of rent accrued between 1st April, 2017 and 30th June, 2017 and also 1st April, 2016 and 31st August, 2016 and further a sum of Rs.11,96,970/- was claimed as interest thereupon. It transpires that subsequently the contesting respondents came to institute another suit bearing O.S. No.- 670 of 2018 that was registered on 7th December, 2018 and this time a sum of Rs.16,44,940/- were claimed towards the arrears of rent and further a sum of Rs.5,82,987/- were claimed towards the interest for the period between 1st July, 2017 and 31st October, 2017. Both the suits were filed as summary suits under Order XXXVII read with Section 151 of C.P.C.

4. The petitioners who were defendant in both the suits filed an application under Order VII Rule 11 of C.P.C. in O.S. No.- 674 of 2018 taking the plea that suit was clearly barred by law in terms of the Order XXXVII Rule 2 sub-rule 1-B of C.P.C. in the first instance and further the second suit would be barred for the relief which could have been claimed under the first suit and the petitioner having chosen not to seek such relief in the said earlier suit, the suit was barred under Order 2 Rule 2 of C.P.C. in the light of the U.P. amendment.

5. The argument advanced by the learned counsel for the petitioner is that the suit under Order XXXVII is maintainable in the event any of the conditions prescribed for under Rule 2 are met and according to him, Rule 2 (I) is attracted in the present case as the claim is sought to be set up on the basis of the written lease agreement reached between the parties. In order to correctly appreciate the controversy, learned counsel for the petitioner has drawn the attention of the Court towards paragraph 8 of the plaint in which it has been stated that there was a lease agreement reached between the parties on 29th June, 2010 and according to which either Rs.1,00,000/- or an amount equivalent to 30% of the receipts obtained in the name of tuition fee / admission fee etc., whichever higher, was to be paid as lease rent but at the same time, vide paragraph 12 of the plaint the amount of dues towards the lease rent were sought to be enhanced and claimed on the basis of the some admission made by the present petitioner in Writ-C No.- 15061 of 2018 and, therefore, it is argued that this stand taken in the plaint cannot be a ground to institute a suit for recovery of rent and arrears as a summary suit under order XXXVII of C.P.C. He further argued that this paragrap