NEERA RAINA BHAGAT Vs. D P SINGH

JUDGEMENT

(1.) This Revision assails the Order dated 3.5.2003 passed by the Learned Additional District Judge, Delhi holding that the Court is sufficiently and duly possessed of jurisdiction to entertain the suit; and that the suit was not barred under Order XXIII Rule 1 (4) of the Civil Procedure Code; and that the notice to quit was not invalid. The Learned ADJ had listed the case for recording of evidence on the remaining issues, other than Issues Nos. 1, 2 and 3 which had been disposed of by that Order. The interim orders passed in these proceedings interdicts the final adjudication of the suit by the Trial Court.

(2.) The Trial Court had framed eight Issues out of which the following three Issues were treated as prelimiary Issues and decided by the impugned Order.

(3.) The next Issue is whether the suit is barred under Order XXIII Rule 1(4) of the CPC. The contention is that the existing suit is based on the same subject matter as the previous one since both of them pertain to the relief of possession and recovery of rent/damages and are between the same parties. In my opinion it is beyond debate that a suit for possession and mesne profits is most often predicated on the issuance of a notice to quit under Section 106 of the Transfer of Property Act. The only exception is where a suit is filed immediately on the expiration of the lease by efflux of time and before the Defendant can claim to have become a tenant by sufferance or by holding over. The Learned ADJ has distinguished the decision of this Court in Suit No.1220/85 titled Jyoti Prasad v. Nathu Ram decided by this Court on 16.9.1985, relied upon by the Defendant. He has also taken note of the decision in Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others, AIR 1987 SC 88, Registrar, Manonmaniam Sundaranar University v. Suhura Beevi Educational Trust and others, AIR 1995 Madras 42, Laxmidas Ramji v. Smt. Lohana Bai Savita Tulsidas and others, AIR 1970 Gujarat 73.