UNISH MISTRY Vs. TAPAN MANNA & ORS.

JUDGEMENT

(1.) The present revisional application is directed against Order No. 67 dated 30th June, 1999 passed by the Civil Judge, Junior Division, 2nd Court, Baruipur in T. S. No. 53 of 1994. By the impugned order a petition under Order 8 Rule 9 of the Code of Civil Procedure stood allowed. It is necessary to make a reference that originally a suit was filed for specific performance in view of incorporation of a renewal clause incorporated in the lease deed. In the said suit an original written statement was filed by the defendant and after long expiry of time on the demise of the original defendant, substituted defendants filed an application under Order 8 Rule 9 to obtain leave for incorporating a counter-claim with a view to get a decree for eviction and recovery of khas possession. The case made out in the petition under Order 8 Rule 6 of the Code of Civil Procedure which was preceded by Order 8 Rule 9 and the case was sought to be built up on the basis of foundation that the defendants are entitled to a decree of eviction and recovery of khas possession of the suit land against the plaintiff on the ground of expiry of registered lease deed of fleux of time. There is further case made out that though the lease expired on 1st of Jan., 1995 but another extension of time by way of alleged permissive possession was granted to the lessee to continue in occupation of the suit premises for another six months expiring with 1st July, 1995. The learned Advocate for the opposite party has pointed out that the said permission was accorded with a primary purpose for removal of the machineries belonging to the defendants. The question that may arise as to what is the state of occupation of the plaintiff during the period of interregnum covering from 1st Jan., 1995 to 1st of July, 1995, namely, as to whether the defendant is in unlawful possession after expiry of lease because of mischief of forfeiture on the ground of efflux of time or during the intervening period, the defendant is occupying the premises as a licensee under permissive occupation. If the defendant is to be viewed as a licensee then possession has to be recovered from the licensee on revocation of licence and if the same would not have happened then it might have a straight case of forfeiture under Sec. 111 (1) (a) of the Transfer of Property Act. A reference may be made to the provisions of Sec. 111 (1) (a) which, inter alia, provides for determination of lease by efflux of time limited thereby. Implied surrender by operation of law may occur by creation of new relationship where scenario of new relationship may be deciphered because of transposition of relationship as licensor or licensee from those of lessor or lessee. In support of the said proposition that implied surrender by operation of law may be inferred by creation of new relationship, reliance may be placed in the case of Shah Mathuradas Vs. Nagappa reported in AIR 1976 SC page 1565.

(2.) In the context of the same, this Court takes into account Order 8 Rule 9 of the Code of Civil Procedure and it takes note of the provisions contained therein to the effect that no pleading subsequent to the written statement of a defendant [other than by way of defence to a set off or counter-claim shall be presented except [by the leave of the Court...................................This Court is conscious of the expression inhered in Order 8 Rule 9, namely, other than by way of defence to a set off or counter-claim. On behalf of the respondent, a reference was made to a decision in the case of T.K.V.S. Vidyapoornachary Sons & Ors. Vs. M. R. Krishnamachary reported in AIR 1983 Madras page 291, and a reference was drawn to Paragraph 6 of the said judgment, where it has been observed with reference to Rule 6 (c) of Order 8 that Rule 6C lays down a special procedure to Separate the suit claim from the counter-claim wherever separation is called for. The said rule makes for an exception and under the proper situation an application can be made for filing of a separate suit for the relief and it should be done before the issues are settled. While analysing of the pertinent rules categorized under different sub-heading of Order 8 Rule 6, the Madras High Court has observed that spell out from the language that philosophy behind the same is laying down unity in diversity. It is to be found in the words of Rule 6A which enjoins one single judgment in the suit provided the counter-claim does not keep its head above the horizon of the trappings of the pleading and the ambit of the four corners of the same emanating from the suit on total meaning of Order 8 of the Code of Civil Procedure. In view of the language of Order 8 Rule 6A, the said counter-claim is in the nature of a claim for damages or not. Though Order 8 Rule 6C provides for a procedure at a later stage but the Court while considering the same cannot be oblivious of the consideration of Order 8 Rule 6C as this Court is in confusion as to whether cause of action of a pending suit for specific performance and as a follow up of the same, suit for recovery of possession can be maintained on the alternative basis either on the ground of forfeiture under Sec. 111 A of the Transfer of Property Act by efflux of time or on the ground of recovery of possession from a licensee where nature of two suits will be different. This Court also feels that there is no scope for invoking the provisions of Order 8 Rule 9 in view of saving provisions which eliminating set off or counterclaim Within the strict periphery of the findings prescribed under Order 8 Rule 9 of the Code of Civil Procedure. The application itself appears to be misconceived avid perhaps it has been prompted to be filed as it has come in the instance of a successor much belated point of time but it cannot bring it within the dimension the claim of set off or counterclaim under Order 8 Rule 9 of the Code of Civil Procedure. The parent application being misconceived one and in view of the language of Order 8 Rule 9 and the observations made by this Court because of emergence of new relationship as licensor or licensee from that of lessor or lessee whether it should be considered as implied surrender in terms of the decision of the Apex Court as referred to above. However, after analysing the same in terms of the observations contained hereinbefore, this Court proposes to interfere with the order impugned because there appears to be certain misdirection in the order as a result of which it is likely to be vitiated by error in exercise of jurisdiction. Accordingly, the impugned order is set aside and the revisional application stands allowed.