Citation Codes

Equivalent Citations

citation codes

Case Number

S.A.O 24-D of 1964.

Attorney(S)

D.K Kapur, Advocate,
Chander Mohan Lal, Advocate,

Judges

Mehar Singh, J.

Acts

INDUSTRIES DEVELOPMENT AND REGULATION ACT 1951
section 14 (l) (b)of the Delhi Rent Control Act, 1958 (Act 59 of 1958),
subrule (3) of rule I of Order 23 of the Code of Civil Procedure. (4)
subrule (3) of rule 1 of Order 23 of the Code of Civil Procedure. (7)
subrule (3) of rule I of Order 23 of the Code of Civil Procedure
subrule (3) of rule l of order 23 of the Code. of Civil Procedure
rule in Order 2, rule 2 of the Code of Civil Procedure,
rule of procedure. Subrule (3) of rule 1 of Order 23
Order 23, rule 1 (3), of the Code of Civil Procedure
section 11 of the. Code of Civil Procedure
section 14 (1 (b) of Act 59 of 1958
section 14 (l) (b) of Act 59 of 1958
subrule (3) of rule I of Order 23
section 37 (2) of Act 59 of 1958
section 14 of Act 59 of 1958.
section 14 (1) (b)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is a second appeal from an order dated November 2, 1963, of the Rent Control Tribunal. The appellant (landlord) sought eviction of the respondent (tenant) under section 14(1)(b) of the Delhi Rent Control Act, 1958 (Act 59 of 1958) on the ground that the respondent had sublet, assigned or otherwise parted with possession of the whole of the premises to Messrs Turner Hoare and Company.

The respondent is a limited company whose business was taken over by the Central Government under the Industries (Development and Regulation) Act, 1951 and a Controller was appointed who in turn appointed Messrs Turner Hoare and Company as selling agents. Messrs Turner Hoare came into possession of the premises before May 26, 1961.

On May 26, 1961, the appellant filed a first eviction application under section 14(1)(b). The respondent filed a reply on October 14, 1961, stating, inter alia, that the agency with Messrs Turner Hoare had ended in July 1961 and denying the ground of eviction. On January 29, 1962, while the first application was pending, the counsel for the appellant made a statement asking the Additional Rent Controller that the application be "consigned to the record" and the Additional Rent Controller made an order consigning the application to the record room and leaving parties to their own costs.

Subsequently, on May 16, 1962, the appellant filed a second eviction application under section 14(1)(b) raising the same factual allegation (that possession had been parted with to Messrs Turner Hoare). The Additional Rent Controller dismissed the second application under subrule (3) of rule 1 of Order 23 of the Code of Civil Procedure on the ground that the earlier application had been effectively withdrawn and permission to file afresh had not been obtained. The Rent Control Tribunal upheld that dismissal, and the present second appeal challenges the Tribunal's order.

Legal Issues Presented

Whether the counsel's statement consigning the first eviction application to the record room amounted to a withdrawal such that subrule (3) of rule 1 of Order 23 of the Code of Civil Procedure (bar on fresh suit after withdrawal without permission) operates to bar the second eviction application.
Whether the subject-matter of the second eviction application is the same as that of the first application (i.e., whether a fresh ground arose after the first application making the second application competent).
Whether the respondent is estopped from contesting the competency of the second application by reason of earlier statements in the first application's reply (specifically, whether representations that the agents had ceased to be agents preclude the respondent from now asserting possession by those agents).
Whether subrule (3) of rule 1 of Order 23 is a rule of substantive law (and therefore outside the procedural rules applicable to a Rent Controller under section 37(2) of the Delhi Rent Control Act) or a rule of procedure that can be applied by the Rent Controller.

Arguments of the Parties

Appellant's Arguments

The appellant argued that the first eviction application was never withdrawn — the counsel only asked that it be consigned to the record room — and that consigning to the record room does not amount to withdrawal; the second application should be treated as a revival of the first.
The appellant contended that subrule (3) of rule 1 of Order 23 does not apply because the subject-matter of the second application differed from the first: at the time of the first application the agents were in possession by virtue of statutory induction and therefore technically there was no subletting/assignment/parting with possession; the alleged ground of eviction arose only later (after July 1961) making the second application a fresh and competent one.
The appellant argued estoppel in its favour: because the respondent earlier represented in July 1961 that Messrs Turner Hoare had ceased to be agents, the respondent cannot now contend that the agents are in possession so as to render the eviction application incompetent.
The appellant further argued subrule (3) of rule 1 of Order 23 is a rule of substantive law (dealing with a substantive right not to be sued afresh) and not a rule of procedure; accordingly, section 37(2) of the Rent Control Act—allowing use of rules of practice and procedure of a Court of Small Causes—does not permit application of that subrule by a Rent Controller.
The appellant relied on several cases (execution proceedings) — Dhanpat Rai v. Alliance Bank of Simla Ltd., Mangal Singh v. Sagar, Daulat Ram v. Pritam Singh, and Yakub Ali v. Durga Prasad — to support the contention that consigning to the record room did not amount to withdrawing and that a subsequent application could revive the earlier one.

Respondent's Position

In its reply to the first application (filed October 14, 1961) the respondent denied the ground of eviction and stated that the agency with Messrs Turner Hoare had been terminated in July 1961.
As to the competency of the second application, the respondent relied on subrule (3) of rule 1 of Order 23 to show that the second application was barred because the earlier application had been effectively brought to an end by the appellant (on the counsel's statement) without obtaining permission to file afresh.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dhanpat Rai v. Alliance Bank of Simla Limited	Authority relied on by the appellant for the proposition that consigning an execution application to the record room did not amount to withdrawal and that a subsequent application could revive the earlier one (execution-proceedings context).	The court held this and similar cases related to execution proceedings and therefore were not applicable to the present original eviction proceedings; the precedent did not assist the appellant.
Mangal Singh v. Sagar	Similar execution-proceedings authority relied on to show non-withdrawal where record was consigned and revival of a subsequent execution application allowed.	The court treated the case as inapposite, noting an execution application is not the same as original proceedings such as an eviction application, so this precedent did not advance the appellant's argument.
Daulat Ram v. Pritam Singh	Another execution-proceedings authority of the same type relied on by the appellant for revival/non-withdrawal principles.	The court again found it inapplicable on the same basis: the facts and nature of execution proceedings differ from original eviction proceedings, so no support was derived from it.
Yakub Ali v. Durga Prasad	Execution-proceedings case where the executing court struck off and filed the record and a later execution application was treated as a revival of the previous execution application.	The court observed this case too was concerned with execution proceedings and was therefore not helpful for the present eviction-suit context.
Thota China Subba Rao v. Mattapalli Raju	Authority cited (by appellant) suggesting that a cause of action which is continuous (e.g., a redemption suit) remains competent at later times and is not barred by earlier dismissal.	The court distinguished this precedent: it involved a redemption suit with a continuous cause of action, which is not analogous to the present eviction matter; the court concluded the analogy did not apply and therefore the precedent did not support the appellant.

Court's Reasoning and Analysis

The court conducted a multi-step analysis that can be summarized as follows.

On the question whether consigning the first application to the record room amounted to withdrawal: the court rejected the appellant's reliance on authorities arising from execution proceedings (Dhanpat Rai, Mangal Singh, Daulat Ram, Yakub Ali). Those cases involved execution applications and the court considered execution proceedings to be materially different from original eviction proceedings. Thus those authorities did not support the appellant's contention that a consignment order could be treated as anything other than a withdrawal in the present context.
The court read the counsel's January 29, 1962 statement (requesting consignment to the record) pragmatically: although the counsel did not use the exact word "withdraw," the statement must be read reasonably and, given that it was made by counsel (an experienced practitioner), the court inferred that the effect was to bring the first application to an end. The court rejected the argument that mere failure to use the word "withdraw" required a contrary conclusion.
On the contention that the subject-matter of the two applications differed (because the first was technically incompetent at the time it was filed due to possession being under statutory induction, and only later — after July 1961 — did a true ground of subletting/assignment arise): the court examined the timeline. The respondent’s October 14, 1961 reply already indicated the agency had terminated in July 1961, and it was three months after that that the appellant's counsel sought consignment to the record. The court found that by July 1961 a situation had arisen which was the basis for the second application and that the subject-matter of both applications was effectively the same. The court also observed that if the first application had been technically incompetent in May 1961, nothing prevented the appellant from continuing it once it became competent in July 1961, including by filing a fresh application immediately then.
On the estoppel argument (that respondent cannot now assert the agents were in possession because it earlier said they had ceased to be agents): the court did not find a clear estoppel. The respondent had stated facts in its first reply (that the agency had terminated) and did not appear to have misrepresented facts to alter the appellant's position. Moreover, the respondent was not asserting in the second instance that Messrs Turner Hoare were still its agents; rather the respondent relied on procedural bar under subrule (3) of rule 1 of Order 23 to challenge competence. The court therefore found the estoppel argument unconvincing.
On whether subrule (3) of rule 1 of Order 23 is substantive or procedural: the court reasoned that although the subrule operates to bar a fresh suit by a plaintiff who has withdrawn a prior suit without leave, the underlying principle is a rule of estoppel — a rule which relates to evidence and procedure. The court considered estoppel to be a rule of evidence and evidence rules to fall within procedural rules. Consequently, the court held that subrule (3) of rule 1 of Order 23 is a rule of procedure and is applicable to proceedings before a Rent Controller under section 37(2) of the Rent Control Act.
The court added an alternative or additional ground for dismissing the appeal: even if the subrule were treated as substantive law and the authorities below had erred in applying it, the first application had in substance been dismissed on merits by the appellant's own counsel's statement. The court reasoned that when a party who has instituted a suit or application requests dismissal without giving any reason, it is reasonable to conclude the application lacked substance and thereby was disposed of on merits. Given that conclusion, the general rule of estoppel precluded a second application based on the same cause of action (subletting/assignment/parting with possession).
The court distinguished the appellant's citation of Thota China Subba Rao v. Mattapalli Raju on the ground that the latter involved a redemption suit whose cause of action is inherently continuous; the court found that the eviction/possession facts here did not present a similar continuous cause of action and thus the cited case was not analogous.
Having considered these strands of reasoning, the court concluded that the second application was incompetent either because subrule (3) applied (as a procedural estoppel) or, alternatively, because the first application had in substance been dismissed on merits and therefore the second was barred by estoppel.

Holding and Implications

Holding: THE APPEAL FAILS AND IS DISMISSED WITH COSTS.

Implications:

The direct effect is that the appellant's second eviction application remains incompetent and the order of the Rent Control Tribunal (upholding dismissal by the Additional Rent Controller) is affirmed; the appellant is liable for costs as ordered by the appellate court.
The court did not purport to lay down a novel or broadly framed precedent beyond its application of established principles of estoppel and the procedural character of subrule (3) of rule 1 of Order 23 in the context of Rent Control proceedings. The opinion distinguishes execution-proceeding authorities relied upon by the appellant and limits their relevance to the context in which they arose.

This summary is prepared solely from the text of the provided opinion and does not add any facts or inferences not present in that text.

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Rampartap , v. India Electric Works Ltd., .

(1) This second appeal from the order, dated November 2, 1963, of the Rent Control Tribunal arises out of an application under section 14 (l) (b)of the Delhi Rent Control Act, 1958 (Act 59 of 1958), wherein the appellant, who is the landlord, sought eviction of the respondent from the premises in question on the ground that the respondent, as tenant, has sublet, assigned or otherwise parted with possession 'of the whole of the premises without obtaining the consent in writing of the appellant, which application was dismissed by the Additional Rent Controller under Order 23, rule 1 (3), of the Code of Civil Procedure on the ground that a previous similar application by the appellant made on the same ground on May 26, 1961, was dismissed on a statement by the counsel for the appellant to that effect on January 29, 1962, after the respond hit had put in reply to that application, and that amounted to withdrawal of the previous application without obtaining permission of the Additional Rent Controller to file afresh application. This order of the Additional Rent Controller has been maintained by the Rent Control Tribunal.

(2) A little more detail of the facts is necessary to appreciate the nature of the controversy between the parties. The respondent is a limited company. Its business was taken over by the Central Government under the provisions of the Industries (Development and Regulation) Act, 1951 (Act 65 of 1951), and a Controller to manage its business was appointed under the statutory powers. The Controller then appointed Messrs Turner Hoar and Company Limited of Bombay to be selling agents for the respondent company. Messrs Turner Hoare and Company came in possession. of the premises in dispute some time before May 26, 1961. On this last mentioned date, the appellant made an application under section 14 (1) (b) for eviction of the respondent on the ground of its having sublet, assigned or otherwise parted with possession of the premises to Messrs Turner Hoare and Company. A reply to that application was made by the respondent on October 14, 1961. In that reply the facts as detailed above were pointed out and it was stated that sometime in July, 1961, the agency with Messrs Turner Hoare and Company came to an end. Of course, that ground of eviction was denied. Upon that, while the case continued pending on January 29, 1962 the counsel for the appellant made a statement before the Additional Rent Controller that that application be consigned to the record. On that, the Additional Rent Controller proceeded to make an order that application be consigned to the record room according to the statement of the counsel for the appellant and the parties be left' to their own costs. There the matter of the first application came to an end.

(3) On May 16, 1962, the appellant filed a second application for eviction of the respondent under section 14 (l) (b) of Act 59 of 1958 on the allegation of the latter having sublet, assigned or otherwise parted with possession of the premises to Messrs Turner Hoare and Company. It is this second application which has been dismissed by both the authorities applying subrule (3) of rule I of Order 23 of the Code of Civil Procedure.

(4) The first argument by the learned counsel for the appellant is that in terms subrule (3) of rule I of Order 23 of the Code of Civil Procedure has no application to the facts of the present case. The reason given for this is that the first eviction application was never withdrawn. All that happened was that the counsel for the appellant asked the Court to consign it to the record room and that request was accepted by the Additional Rent Controller. The learned counsel says that that does not amount to withdrawal. And he further says that the second application may be treated as an application for revival of the first application. In this respect he relies upon Dhanpat Rai v. Alliance Bank of Simla Limited. Mangal Singh, v. Sagarand Daulat Ram v. Pritam Singh, all cases arising out of execution proceedings in which although the attachment was kept intact but the execution application was consigned to the record room, and the subsequent execution application was treated as a revival of the first application on the ground that the order on the first application for consignment to the record room was not an order disposing of that application. It is obvious that none of these cases has any bearing on the facts of the present case, for an execution application is not the same thing as original proceedings of the nature of a suit as an eviction application under Act 59 of 1958 is. There is one other case to which the learned counsel has referred in this respect and that is Yakub All v. Durga Prasad. That also was a case of an execution application. What the executing Court did was to strike off and filed the record of the executing application on the report of the Collector that part of the property to which the application related belonged to persons who were not parties to the decree. A second execution application to execute the same decree was treated as an application to revive the previous execution application. In substance, this case is not different from the three cases already REFERRED TO. So that these cases do not advance the argument on the side of the appellant. It is true that the counsel for the appellant in the first application did not use the word 'withdraw' in his statement, but the statement is to be read in a reasonable manner and if he was not withdrawing the application of the appellant, it is not quite clear what he was trying to do. If it had been a statement made by a party not conversant with the manner of litigation, something might have been said, but her was a counsel for the party who was making a statement and it seems rather to stretch what has happened too much to say that as the word 'withdraw' has not been used in the statement of the counsel for the appellant, that statement be treated as not a statement of with drawal of the first application. I do not consider that such an approach is proper in the circumstances of the case.

(5) The second argument by the learned counsel for the appellant is that even if subrule (3) of rule l of order 23 of the Code. of Civil Procedure applies, the subject matter of the second eviction application s not the same as was the subject matter of the first eviction application. The learned counsel says that when the first eviction was instituted, at the time because the Controller had in exercise of his statutory powers inducted the agent into the premises. there was probably technically not a case of subletting, assignment or parting with possession, and the first application was thus really not competent. In the circumstances, if the counsel. for, the appellant did make a statement of the 'type as has been stated, he could not be said to have made any such statement and allowed the first application to come to an end with the same subject matter as that of the second application. The reason further elaborated is that' the ground at that time, that is to say when the first application was instituted, really did not exist and as it has come into existence subsequently, the subject matter of the subsequent application cannot possibly be described as the same as that. of the first application. This argument probably may have stood t. e ground if the respondent had not in its reply to the first application made on October 14, 1961, pointed out that the 'agency of the agents had been terminated some three months earlier in July, 1961. It was some three months after that statement by the respondent that the counsel for the appellant brought an end to the first eviction application of the appellant. During the pendency of that application a situation had arisen, which is a situation on the basis of which the second application has been made to the Additional Rent Controller. So that it is not correct that the subject matter in both the applications is not the same. Now, it may be that before July, 1961, the appellant may have had his first application for eviction dismissed on this consideration that he had come to know that really there was no case of subletting, assignment or parting with possession. by the respondent to the agents, for the agents had come into possession of the premises under a statute: But in and after July, 1961, the agents cased to be the agents and nothing stopped the appellant to continue with the first applications. Even if a technical consideration is pressed to the limit that on May 26, 1961, the first application of the appellant was not competent, surely nothing stopped that application continuing when it became competent in July, 1961, for m July 1961 a fresh application of the same type could immediately have been filed. So, as stated, it is not correct that the subjectmatter of the two applications has not been the same.

(6) Another argument, by the learned counsel for the appellant has been that the respondent is barred by estoppel from questioning the competency of the second application and the basis for this argument is that in July, 1961, it represented that Messrs Turner Hoarc and Company had ceased 'to be its agents and had nothing to do with the respondent's affairs and the learned counsel says that the respondent cannot now turn round and say that Messrs Turner Hoare and Company are in possession and this eviction application is not competent against the respondent. But I am not quite clear how there is any estoppel involved in this. The respondent stated facts clearly in the first reply to the first eviction application of the appellant and it did not seem to have misrepresented any facts. It did not. seem to have misrepresented any facts on the basis of which the appellant's position has been altered in any respect. All that it then said was that by July, 1961, Messrs Turner Hoare and Company had ceased to be the agents of the respondent. But the respondent is not now saying that Messrs Turner Hoare and Company are its agents It is not now saying that it has sublet or assigned or parted with possession of the premises to Messrs Turner Hoare and Company. But what it is merely saying is that the second application of the appellant is not competent in view of subrule (3) of rule 1 of Order 23 of the Code of Civil Procedure.

(7) There is the last argument by the learned counsel for the appellant that subrule (3) of rule I of Order 23 of the Code of Civil Procedure cannot apply to the present case because that subrule is a rule of substantive law and is not a rule of procedure and that under section 37 (2) of Act 59 of 1958 only rules of practice and procedure of a Court of Small Causes apply to Rent Controller. It is not denied that rule I of Order 23 applies to a Court of Small Causes. The learned counsel points out that subrule (3) of rule I of Order 23 bars a fresh suit. It thus vests a right in the opposite party not to be brought before a Court by a second or a fresh suit by a party who has withdrawn its previous suit without obtaining permission to file fresh suit. As the subrule deals with a substantive right of the party opposed to the party withdrawing the suit or proceeding's, it is a rule of substantive law and not a rule of procedure. Subrule (3) of rule 1 of Order 23 precludes institution of a fresh suit when the party has once come before a Court with a suit and while withdrawing it has not obtained permission of the Court to file a fresh suit. . The party so withdrawing its suit has once exercised its right of action to come before a Court. It is prohibited from coming before a Court a second time in the circumstances detailed in subrule (3) of rule I of Order 23. There is a similar prohibitory rule in Order 2, rule 2 of the Code of Civil Procedure, which prohibits a plaintiff from suing second time in respect of portions of relief omitted or relinquished in a previous suit. There is then section 11 of the. Code of Civil Procedure which bars a. Court from trying any suit or issue which ha. ;substantially been decided on merits between the same parties previously and, of course, subject to all conditions laid in that section. Now, in all the three cases the. party concerned or rather the plain tiff has. exercised his right of action once and it is en the exercise of that right of action that the limitations are then placed either prohibiting him from coming to the Court again or prohibiting the Court from taking cognizance of it again. No doubt, when these provisions are considered in detail there are differences of detail but those are not material for the present matter. What I am pointing out is that if plaintiff or a party has exercised the right to institute a suit or proceedings, what is an obstruction or a prohibition to the institution or starting of the same all over again is in substance nothing more but a rule of estoppel which estops a party to come before the Court. This is how I understand subrule (3) of rule I of Order 23. If so far I am right, I think there is no difficulty with the rest because an estoppel is a rule of evidence and all rules of evidence are rules of procedure. So that subrule (3) of rule I of Order 23 is. in my opinion, a rule of procedure and applies to proceedings before a Rent Controller in an eviction application under section 14 of Act 59 of 1958.

(8) I will, however, assume for a moment that subrule (3) of rule I of Order 23 is not a rule of procedure but is a rule of' substantive law and that the authorities below erred in dissmissing the application of the appellant or rather deciding the in competency of it because of that provision, but on another ground the order has to be sustained. The ground is this, the appellant's counsel made a statement in the first eviction application asking the Additional Rent Controller to consign it to the record room. The statement was made at the stage when some months earlier the agency of the agents had been terminated. The agents were there in the same position without the agency as they seem to have continued to do so. The learned counsel for the appellant at this stage points out that there is nothing to show that in July, 1961, the agents were in the premises after the termination of the agency, but while from October 14, 1961 the respondent has said that it has nothing to do with the agents, it has nowhere been stated that the agents ever vacated the premises at any time. So the counsel for the appellant had the first application dismissed for no obvious reason. What would have been the effect if he had just added one more sentence to his statement and said that there is nothing in the application of the appellant and be consigned to the record room. The result would have been that the application would have been dismissed on merits as without foundation. I do not see that the present statement of the counsel for the appellant has a different effect. He had the application dissmissed without any reason and it must be read as having been dismissed because there was no substance in it. In this light that application was dismissed on merits. It is not only when statement of witnesses are taken and documents are proved and then a decision given that a suit or an application is dismissed on merit. If a party having instituted a suit or an application then without any reason wants it to be dismissed, the obvious conclusion is that it has nothing to support it and then the dismissal is on merits. That being so, no second application for same cause of action, that is to say subletting, assignment and parting with the possession of the premises is competent under the general rule of estoppel. It has been said, with reference to Thota China Subba Rao v. Mattapalli Raju, that the application is competent because it is a continuous cause of action. That was a case of a redemptions suit and till a redemption suit is barred by the rule of the limitation, every single minute gives the mortgagor a cause of action to redeem and no failure of his to redeem earlier ever bars a suit to the last date of limitation. The institution here is not parallel. At least by July, 1961, there was a ground which the appellant did and could urge in the first eviction application, By the time the second eviction application came to be instituted, it is not shown that the situation has on any material aspects altered. The agents without the agency are still said to be the sublessees or the assignees or the persons to whom the possession of the premises has been given, So that there is no recurring cause of action in the present case. If an argument like this were to succeed, there would be day to day applications under section 14 (1 (b) of Act 59 of 1958 in that as soon as one was dismissed the next day second could be filed. I do not think such a state of affairs is admissible under the provisions of that Act and the last case cited by the learned counsel does not apply to the facts of the present case. The result is that this appeal fails and is dismissed with costs.

Rampartap , v. India Electric Works Ltd., .

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Rampartap , v. India Electric Works Ltd., .

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