Benoy Bhusan Dasgupta v. Sm. Sabitri Banerjee .

JUDGMENT

1. This appeal from appellate decree is directed against the judgment and decree dated August 30, 1970, made in Title Appeal No. 337 of 1970 by Shri S.K Dutta Additional District Judge, 1st Court, Alipore, affirming thereby the judgment and decree dated January 30, 1970, made in Title Suit No. 234 of 1968, by Shri D.K Panda, Munsif, 2nd Court, Alipore.

2. The plaintiff-respondent, being the owner of the premises in suit brought the Title Suit in question against the defendant appellant for recovery of khas possession by eviction and for mesne profits and also for compensation for damages caused to the same. It was alleged that the defendant appellant was a tenant in respect of two bed rooms, one privy and one verandah at a monthly rent of Rupees 35/-, payable according to English calendar month. It was contended that the tenant defendant broke open a portion of the wall in between the bed rooms of his tenency, made a hole in the wall of the 0000000000000other portion of the rooms of the tenancy and thereby contravened the provisions of clauses (m) and and (o) of Section 108 of the Transfer of Property Act and as such became liable for eviction. The tenancy was alleged to have been duly determined by necessary service of notice to quit.

3. The tenant-defendant, apart from denying the material allegations, contended that he was a tenant in the premises in question from the predecessor-in-interest of the plaintiff respondent at a rent of Rs. 24/- per month, payable according to English calendar month and at first his tenancy consisted of 2 rooms and a privy which was used by him jointly with other tenants. He alleged that after her purchase there was some rearrangement of the tenancy at the request of the plaintiff respondent and the tenant defendant left possession of one of his rooms in exchange of another room of similar size. He has further alleged that the room so surrendered by him was converted into two privies and he was given exclusive possession of one of the said two privies. Thus the tenant defendant has contended that the extent of his tenancy was thus changed to two rooms, one privy and a verandah and the rent of the same was correspondingly increased to Rs. 35/- from Rs. 24/- per month. The tenant defendant has stated that since there was neither any intercommunicating door between the two rooms of the tenancy as subsequently created nor there was any ventilator in the newly constructed privy, for which he was facing great trouble and difficulties, he with the knowledge and consent of the plaintiff respondent's husband and/or with intimation to him got an opening in the common wall of the two rooms and so also a vantilator in the privy. On such happening, the plaintiff respondent filed Title Suit No. 122 of 1968 for permanent injunction restraining him from breaking or demolishing any portion of the structure within his tenancy. A prayer for mandatory order of injunction directing him to restore the walls of the rooms to their former position was also made. On admissions made by him in the written statement, the said Title Suit was decreed on contest and thereafter the tenant defendant has filled up the portions he broke open for the purposes as aforesaid. Since the damages which were caused were duly repaired the tenant defendant contended that the subsequent suit for ejectment on the ground of causing damages was not maintainable. In that view of the matter it was also contended by him that the plaintiff respondent was not entitled to any damages at all, apart from contending further that the present suit in view of the earlier determination was barred.

4. On the pleadings as aforesaid the parties went in trial on the following issues:—

1. Has the plaintiff any cause of action?

2. Has the defendant illegally demolished the portion of the suit premises as mentioned in the plaint without the knowledge and consent of the plaintiff, causing material deterioration of the suit premises?

3. Is the notice to quit legal, valid and sufficient to determine the tenancy?

4. Is the plaintiff entitled to a decree for ejectment and damages against defendant?

5. To what relief, the plaintiff is entitled?

5. The contentions of the defendant appellant were negatived by the learned Munsif excepting the plaintiff respondent's claim for damage and he held that the defendant appellant was guilty of causing damages to the tenancy and as such decreed the suit holding further that the notice to quit was due, valid and proper.

6. From such determination the defendant appellant preferred the connected appeal which was contested by the plaintiff respondent by filing a cross-objection on the question of damages to be paid to her. The learned appellate Court formulated the following points for consideration:—

1. Whether the present suit is maintainable?

2. Whether the notice to quit was valid and sufficient?

3. Whether the plaintiff is entitled to recover khas possession of the premises in suit by evicting the defendant from there?

4. Whether the plaintiff is entitled to compensation for the damages said to have been committed by the defendant to the rooms in the premises in suit ? And, if so, to what extent? And Whether the plaintiff is entitled to the cost of the suit?

5. To what relief, if any, is the plaintiff entitled in the suit?

7. And held that since the instant suit does not come within the purview of Order 2, Rule 2 of the CPC so the same was not barred, the tenancy was according to English calendar month and there was no defect in the notice to quit and furthermore the same was duly served and there were obvious damages caused to the tenancy by the openings as mentioned hereinbefore and for that the defendant appellant was liable to be evicted. It has of course been held that the plaintiff respondent's claim for damage was unfounded and she was not entitled to the same. In view of the above both the appeal and the cross-objection was rejected.

8. The present appeal has been preferred by the tenant defendant and there has been no cross objection by the plaintiff respondent.

9. Mr. Bakshi appearing in support of the appeal, apart from reiterating the arguments as advanced before the learned appellate Court, submitted further that because of the repairs of the damages which were admittedly done, the subsequent suit for ejectment on the grounds of damage was not maintainable and in any event such opening of a door and ventilator as alleged would not be a case of damage but they should be considered as improvements.

10. Mr. Dutt, appearing for the plaintiff respondent submitted that since the damages in question were repaired after the decree and there were admitted damages caused to the premises, the subsequent suit would be maintainable. He also submitted that the subsequent suit would also be maintainable because the scopes of the two suits were different and such difference would be apparent from a reference to the prayers in the respective plaints. It was also submitted that since there were admitted breaches of clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act, the suit as instituted on due and proper service of notice, would also be maintainable and the more so when protections under the West Bengal Premises Tenancy Act would not be available for subsequent repairs.

11. Mr. Bakshi submitted that the connected suit was barred under Order 2, Rule 2 of the CPC in view of the previous Title Suit No. 122 of 1968, which as stated hereinbefore was instituted by the plaintiff respondent in respect of the premises in suit and she could have asked for the reliefs as in this suit in the said earlier suit. In fact, it was submitted by him that the cause of action in the two suits was identical. In support of his contentions and to establish his case on cause of action and the bar of the connected suit for the earlier one, Mr. Bakshi first relied on the case of Moonshu Buzloor Ruheem v. Shumsoonnissa Begum, (1867) 11 Moo Ind App 551 (PC). In that case the test which has been held to be correct and applicable in the matter of finding out whether a subsequent suit would be barred because of an earlier one, is whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit. Thereafter, reliance was placed on the case of Mussummat Chand Kour v. Pratab Singh, (1888) 15 Ind App 156 (PC). In that case it has been observed that the subsequent suit would not be barred if the same was founded upon a different and subsequent cause of action. The next case on which reliance was placed by Mr. Bakshi is the case of Muhammad Hafiz v. Mirza Muhammad Zakariya, 26 Cal WN 297 : (AIR 1922 PC 23). In that case a hypothecation bond contained a clause stipulating that if interest was not paid for six months the creditor might sue either for interest alone or for both principal and interest without waiting for the expiration of the period fixed for repayment (which was three years) and the debtor was “to have no objection whatever.” More than three years after, no interest having been paid, the creditor brought a suit for interest alone and obtained a decree for sale of the mortgaged property. The decretal amount was deposited in Court and satisfaction entered. On a subsequent suit by the creditor for the principal sum and arrears of interest, it was held that:

“the provisions of Order 2, Rule 2 of the CPC were applicable and the subsequent suit was not maintainable and the cause of action which gives occasion for and forms the foundation of the suit, and if that cause enables a man to seek for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.”

12. Thereafter, reliance was placed on the case of Mohammad Khalil Khan v. Mahbub Ali Mian, 52 Cal WN 812 : (AIR 1949 PC 78) wherein it has been laid down that the correct test in cases falling under Order 2, Rule 2 of the CPC is whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation of the former suit, and it has been further held that the cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. It has also been observed in that case that the cause of action in two suits may be considered to be the same if in substance they are identical. The same has no relation whatever to the defence that may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff but refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour. These apart, Mr. Bakshi relied on the case of Wright v. Bonnet, (1948) 1 All ER 227.

“In that case the plaintiff failed in an action in which he claimed damages for fraudulent misrepresentation against two defendants and damages for negligence against one of them. He then began a second action against the same defendants, covering substantially the same ground as the first, but based on an allegation of fraudulent conspiracy. It was held on an application by the defendants to have the statements of claim struck out on the ground that the action was frivolous and vexatious, that the proceedings were an abuse of the process of the Court, which should exercise its inherent jurisdiction to prevent the defendants being called on to meet what in substance and reality was the same charge as that in the earlier action.”

13. On the admitted facts that the damages, which are the basis of the cause of action having been duly repaired and rectified although after the decree in the previous suit, Mr. Bakshi submitted that the subsequent suit would not also be maintainable and in support of such contentions relied on the case of Brij Kishore Gupta v. Vishwamitra Kapur ., AIR 1965 SC 1574. Two appeals were heard analogously by the Supreme Court wherein a common question with respect to the application of the first proviso to Section 57(2) of the Delhi Rent Control Act, 1958, came up for consideration and the said provision is in the following terms:

Section 57(2) : Notwithstanding such repeal, all suits and other proceedings under the said Act pending, at the commencement of this Act, before any Court or other authority shall be continued and disposed of in accordance with the provisions of the said Act, as if the said Act had continued in force and this Act had not been passed:

“Provided that in any such suit or proceeding for the fixation of standard rent or for the eviction of a tenant from any premises to which Section 54 does not apply, the Court or other authority shall have regard to the provisions of this Act.”

14. In Appeal No. 879 of 1962 the landlord brought the suit for ejectment on the ground that the tenant had removed some structures in the shape of closing and opening verandah and removed a portion therein. On account of this, notices were sent to the landlord as well as to the tenant by the authorities concerned to remove those unauthorised structures. Since the tenant did not do so, the suit was filed by the landord under Section 13(1)(k) of the Delhi and Ajmer Rent Control Act, 1952.

15. In the other Appeal, being Appeal No. 121 of 1963, also the facts were similar and the suit was filed on the basis of the provisions as mentioned hereinbefore. In that case also the tenant had closed the verandah without the permission of the authorities concerned and notice was given to the landlord on that count by the authorities concerned and he in his turn asked the tenant to remove the unauthorised structures. On the tenant's failure and neglect to do so, the landlord filed a suit. It appeared that during the trial of the suit, the tenant made certain changes in the structure and removed the glazing and instead he closed the verandah with wire gauze net.

16. In the circumstances, as aforesaid, the question that arose for determination in both the cases was whether the tenant could still be ejected after he had removed the unauthorised structure and there was no further danger to the landlord's lease being forfeited and in that connection the application of the first proviso to Section 57(2) of the Act as mentioned hereinbefore arises and it has been held that the first proviso of the said section must be read harmoniously with the substantive provision contained in sub-section (2) and the only way of harmonising the two was to read the expression “shall have regard to the provision of the Act” as merely to mean that whether the new Act has slightly modified or clarified the provisions, these modifications and clarifications should be applied. Those words did not take away what was provided by sub-section (2) and ordinarily the old Act would apply to pending proceedings. It has further been observed that Section 114-A of the Transfer of Property Act gives power to Court to give relief to tenant against forfeiture where it held that the landlord did not give reasonable time to the tenant to remedy the breach. In such case it can dismiss the suit as not maintainable. It has also been observed that it is true that the said Section 114-A would not in specific terms apply to cases of ejectment on the ground specified in Section 13(1)(k) of the 1952 Act but it was somewhat analogous to forfeiture on breach of an express condition of a lease for it also requires previous notice to the tenant before the suit is filed. The Supreme Court has also held that it cannot be said that 1952 Act forbid the Court from granting the relief where the offending structures were removed by the tenant even during the pendency of the suit for ejectment. It has also been observed that what is reasonable time within which the breach should remedied it is always a question of fact and it would have been possible for the Court in a suit based on Section 13(1)(k) of the 1952 Act to give relief against forfeiture in a proper case where the tenant had removed the offending structure before the suit was filed or even during the pendency of the suit, if reasonable time was not allowed in the notice in question.

17. Mr. Bakshi, as stated hereinbefore contended thereafter that the opening of a door or verandah would not constitute damages caused to the premises but the same would be an improvement. He submitted that on the analogy of the determination of this Court in the case of Sunil Baran Roy Chowdhury v. Purna Chandra, (1955) 59 Cal WN 974, it must be held that when admittedly the damages were repaired in the manner and circumstances as stated hereinbefore there was no damage subsisting on the date of the subsequent suit and as such the said determination as referred to and relied on both by the Courts below and by Mr. Dutt has got no application to this case. In that case it has been observed that the act of a tenant in putting down a door contrary to the provisions of Section 108(o) of the Transfer of Property Act would attract the proviso to Section 12 (d) of the Rent Control Act, 1950. That apart, Mr. Bakshi relied on the dictionary meaning of the word “damage” in support of the contentions as referred to hereinbefore. “Damages” according to Byrnes Law Dictionary occurs where one person has done a wrongful act for which the person injured may obtain compensation in an action. According to Stroud the word damage, neither in any common parlance, nor any legal phraseology, is used as applicable to injuries done to persons; but solely as applicable to mischief done to property. It has also been observed that “damage” occasioned by the erection of a urinal etc., means only direct damage caused by the structure itself; not consequential damage by reason of its being so erected as to cause a nuisance. It has also been laid down that the word “you damage” would mean a circumstances or a thing if “you” render it imperfect or inoperative. “Damage” in contrast with injury, means loss or harm occurring in fact, whether actionable as an injury or not. Where a lessee authorised the lessor to enter and execute repairs making good of damages thereby occasioned it has been held in the case of Greg v. Planone, (1936) 1 KB 669 that “damage” was not confined to structural damage but included damage done to the lessee's stock in trade by soot brought down on the cleaning of a flue. Such word damage to an English lawyer, as has been held in the case of Hall Brothers S.S Company Limited v. Young, (1939) 1 KB 748 to imply the sums payable by reason of some breach of duty or obligation, whether the duty or obligation is by contract, by general law or by relation. Damages would fall under two heads (1) general damage i.e such damages as the law will presume to flow from that which forms the subject-matter of the action and (2) special damage i.e other damages as can be recovered only if it is specially alleged and specially proved. There may be another case of actual damage which would mean real, substantial and just damages, or amount awarded to a complainant in compensation for his actual or and real loss or injury as opposed on the one hand to “nominal damage” and on the other to “exemplary”, or “punitive damages”. Damage would also mean loss or harm resulting from injury to person, property or reputation, compensation in money realisable by law for loss or injury. The words “damage” and “damages” form more than one meaning. It may mean injury; the words may mean sums paid as has been held in the case of Swansea Corporation v. Harpur, (1912) 3 KB 493 under the order of the Court for compensation for a breach of contract. Damage means any loss whether actionable as an injury or not. It may be defined as the pecuniary compensation which the law awards to a person for the injury he has sustained by reason of the act or default of another where that act or default is a breach of contract or a Tort; or can more shortly, damages are the recompense given by process of law to a person for the wrong that another has done to him. “Damage” as has been held in the case of Central India Chemicals (P.) Ltd. v. Union of India, AIR 1962 Madh Pra 301 to connote a genus while “deterioration” and “destruction” connote two species. According to Chambers's Dictionary damage means hurt, injury, loss, the value of what is lost, the pecuniary reparation due for loss or injury sustained by one person through the fault or negligence of another and according to Oxford Dictionary such word would mean loss of value or efficiency inflicted harm, some claim adjudged as compensation. It is meant by the word “damages”, pecuniary satisfaction awarded by a judge, a jury in a Civil action for the wrong suffered by the plaintiff.

18. The admitted facts in the instant case are that some damages were caused to the premises in suit by the defendant appellant for which on the definition of the word “damage” as mentioned hereinbefore, the plaintiff respondent was entitled to be recompensated and in fact for such recompense she brought the earlier suit and the said suit being decreed on the findings of damage, damages as caused were repaired and rectified after the decree and thereafter for the self same damage to the premises in suit, the later suit was filed. What then should be the effect of such repairs and whether after such repairs, the damage would be still continuing or subsisting for which the later suit could be filed ? The answer to the question would in fact decide the question of maintainability of the appeal and thereby the appeal itself, because if the subsequent suit itself is not maintainable then the present appeal will have to be allowed after setting aside the judgments and decrees of the learned Courts below and otherwise they will have to be affirmed and thus to dismiss the appeal, as there is no other point involved in the appeal, which can be gone into or considered in second appeal because of the restricted nature and power of interference by this Court in this jurisdiction and the more so when such findings are concluded by findings of fact arrived at on due consideration of the evidence on record. There is no denying the fact that on the repairs as done, although after the decree in the earlier suit, the nature and character of the damages as claimed or mentioned in the later suit could not be existing in respect of the premises in suit and as such the basis of the suit in the subsequent suit could not in any event be claimed to be subsisting and in fact it cannot in any way be claimed or considered that there were damages in terms of the definition of the word ‘damage’ as mentioned hereinbefore. The object of Rules 1 and 2 of Order 2 is to prevent multiplicity of suits. The Rule in Order 2, Rule 2 is founded on the principle that a person shall not be vexed twice for one and the same cause. The term of Order 2, Rule 2 requires only that every suit shall include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action which the plaintiff may have against the defendant and if the cause of action in the subsequent suit is not barred. The provisions of the West Bengal Premises Tenancy Act do not create, as found by the learned appellate Court, any new cause of action for the landlord and grounds of ejectment remain as they are under the provisions of the Transfer of Property Act. Thus causing damages to the suit property was certainly a good ground for ejectment under the provisions of the Premises Tenancy Act but since such damages were admittedly repaired duly, the same could not be a ground for ejectment in the subsequent suit because at that time damages as alleged were not subsisting. A suit for ejectment can only be brought on subsisting cause of action viz., damage to the premises in the instant case.

19. The instant suit, being founded or based upon the same damages which were in issue in the earlier one, would not be maintainable and that too when the claim in question was made on a cause of action not quite distinct or practically and in effect the same in the earlier suit and all the more so when the breach alleged or complained of is the same. The findings of the learned Courts below on the question of the notice require no interference and they are proper and as such affirmed.

20. In view of the above and applying the tests as laid down in the cases as cited, this appeal should succeed and the same is thus allowed. The judgments and decrees of the Courts below are set aside. There will however be no order for costs.

21. Appeal allowed.