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Rikabdas A. Oswal v. Deepak Jewellers And Others
Factual and Procedural Background
The landlord initially filed a suit for eviction of the tenant on the grounds of bona fide need and sub-letting under the Bombay Rent Act. Although the plaint mentioned arrears of rent, it expressly stated that no claim for those arrears was being made. That first suit was dismissed. While the landlord’s appeal against that dismissal was still pending, he served the tenant with a notice for arrears of rent and filed a second suit (RCS No. 405 of 1984) seeking eviction solely on the ground of rent default after complying with Section 12(2) of the Bombay Rent Act. The trial court decreed eviction, and the tenant’s appeal was dismissed.
Subsequently, the tenant applied for review before the District Judge (the appellate authority). For the first time, the review application asserted that the second suit was barred by Order 2 Rule 2 of the Code of Civil Procedure (CPC). Agreeing with this new contention, the District Judge reviewed and reversed his earlier appellate order, holding the second suit barred. The landlord’s revision to the High Court failed, prompting the present appeal before the Supreme Court.
Legal Issues Presented
- Whether the District Judge, acting as the appellate authority under the Bombay Rent Act, was entitled to entertain a review petition that raised—belatedly—the plea that the subsequent eviction suit was barred by Order 2 Rule 2 CPC.
- Whether, on the facts of the case, the landlord’s second eviction suit based on rent default was actually barred by Order 2 Rule 2 CPC.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Supreme Court noted that in the first suit the landlord had expressly disclaimed any claim based on arrears of rent; therefore, eviction on that ground was neither sought nor adjudicated. Consequently, the necessary elements for the bar under Order 2 Rule 2 CPC—namely, an earlier claim founded on the same cause of action—were missing.
Furthermore, the tenant had never pleaded the Order 2 Rule 2 bar in his written statement, in his appeal, or even in the body of the review petition. Because a plea under Order 2 Rule 2 is one of waiver that must be specifically raised, the District Judge lacked authority to introduce and decide the issue sua sponte during review proceedings.
On merits, the Court held that Order 2 Rule 2 CPC was inapplicable as the two suits were founded on distinct causes of action: the first on bona fide need and sub-letting, and the second on rent default after a statutory notice. Therefore, both the District Judge’s reviewed order and the High Court’s refusal to interfere were legally unsustainable.
Holding and Implications
Appeal Allowed; orders of the High Court and District Judge set aside.
Immediate Effect: The eviction decree granted by the trial court in RCS No. 405 of 1984 stands restored, and the tenant’s plea under Order 2 Rule 2 CPC is dismissed.
Broader Implications: The judgment reinforces that (1) a plea under Order 2 Rule 2 CPC must be specifically pleaded, and (2) review jurisdiction cannot be invoked to introduce new legal grounds not raised earlier. No new precedent was set beyond clarifying these established principles.
1. Leave granted.
2. The short question that arises for consideration in this appeal is whether the District Judge, who was the appellate authority under the Bombay Rent Act, could have entertained an application for review of the earlier order passed in appeal, and allowed the same and come to a conclusion that the subsequent proceedings filed by the landlord for eviction of the tenant are barred under Order 2 Rule 2 of the Code of Civil Procedure.
3. The aforesaid question arises under the following circumstances. The landlord appellant filed a suit for eviction of the tenant essentially on the ground of bona fide need and sub-letting. It is, no doubt, true that in the plaint he had made some averments that the tenant had also defaulted in payment of rent but he had simultaneously further averred that the landlord is not making any claim for arrears of rent. That suit ultimately was dismissed. During the pendency of the said suit, however, the landlord had alleged to have served notice on the tenant for arrears of rent. Against the earlier dismissal of the suit while the landlord's appeal was pending before the appellate authority, he filed the present suit which was registered as RCS No. 405 of 1984 for eviction of the tenant on the ground of default making all necessary averments that the due notice, as required under Section 12(2) of the Bombay Rent Act, has been served in the meantime. The learned trial Judge disposed of the present proceedings and granted an order of eviction of the tenant. In the written statement filed by the tenant, no plea had been taken that the subsequent suit is barred by the provisions of Order 2 Rule 2 CPC.
4. Against the order of eviction passed by the learned trial Judge, the tenant preferred an appeal, but that appeal of the tenant was dismissed. It may be stated at this stage, the earlier appeal of the landlord arising out of the suit for eviction on the ground of bona fide need and sub-letting was also dismissed and the landlord challenged the same in a writ petition before the High Court, which also stood dismissed. After the disposal of the tenant's appeal in the present proceedings, an application for review was filed and even in the review application, no ground had been taken that the subsequent suit is barred by Order 2 Rule 2 CPC. But certain assertions of facts had been made indicating that even in the earlier round of litigation, the landlord had sought for eviction on the ground of arrears of rent. On the basis of those assertions in the review application made for the first time notwithstanding the fact that in the written statement no point had been taken with regard to the bar of the subsequent suit under Order 2 Rule 2 CPC, the learned District Judge reviewed the earlier appellate order on a finding that the subsequent proceeding is barred under Order 2 Rule 2 CPC. The landlord appellant challenged the said order by filing a revision in the High Court. But the High Court having rejected the same, the present appeal has been preferred.
5. The District Judge, while reviewing the earlier order passed in appeal as well as the High Court appear to have taken the view that in the earlier proceedings, the application for eviction was also on the ground of default of rent. But, having examined the assertions made in the plaint itself, it is difficult for us to hold that in the earlier round of litigation, the landlord did make any prayer for eviction on the ground that there has been an arrear of rent. On the other hand, the factual assertions having been made about the arrears of rent dues, the plaintiff having averred that he is not making any claim for arrears, we fail to understand how an issue could be raised on that score or any finding thereon arrived at by the forum below can be pleaded as a bar in the subsequent suit. Be that as it may, the tenant respondent not having taken the plea of bar of subsequent suit under Order 2 Rule 2 CPC in the written statement itself nor even in the grounds of appeal before the appellate authority while preferring the appeal and also in the application for review, the learned District Judge could not have entertained the plea of bar of the subsequent proceedings on account of Order 2 Rule 2 CPC and decided the same. Even on merits, we are of the considered opinion that the provisions of Order 2 Rule 2 CPC will have no application to the facts and circumstances of the present case, as already narrated. The High Court, therefore, committed error in dismissing the revision of the present appellant. We, accordingly, set aside the impugned order of the High Court in revision as well as the order of the District Judge passed in review.
6. This appeal is allowed. However, there shall be no order as to costs.
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