SHRIMATI RAJESHWARI DEVI Vs. SHIV KUMAR

JUDGEMENT

(1.) THIS is a second appeal filed by Smt. Rajeshwari Devi and others against the order of Shri Inder Mohan Malik, Senior Subordinate Judge, Narnaul, dated May 28, 1976, accepting the appeal of Shiv Kumar Respondent against the order of Shri P.K. Goel, Subordinate Judge, Rewari, dated June 3, 1972, dismissing his suit for possession of the shop specified in the plaint and situate at Rewari under Order 9, Rule 9, Civil Procedure Code.

(2.) ON July 1, 1969, Shiv Kumar respondent filed suit No. 359 of 1969 in the Court of Subordinate Judge, Rewari, for the recovery of the possession of the shop in dispute and situate at Rewari, alleging therein that he was its tenant at Rs. 17/ - per mensem under Smt. Rajeshwari Devi and he carried on business, therefor, the last 30 years. In 1956, he started doing the business in this shop under the name Sukh Lal Ghamandi Lal. On September 11, 1967, he entered into a partnership with his father Ghamandi Lal according to which 85 shares were to be owned by him and the remaining 15 by his father. The entire capital had, however, been invested by him and he continued to remain to be the sole proprietor of the business. On January 26, 1969, he went to Delhi in connection with the Republic Day function and in his absence Smt. Rameshwari Devi and others bribed his father and in collusion with him illegally obtained the possession of the shop. He was not dispossessed from the shop according to law and was, therefore, entitled to take back its possession. He assessed the value of the suit for purposes of Court -fee at half the annual rental value and paid Rs. 11/ - as court -fee thereon. In the heading of the plaint, the suit was termed as one under section 6 of the Specific relief Act (hereafter referred to as the Act). Suit No. 359 was dismissed on December 4, 1970, under Order 9, Rule 8, Civil Procedure Code. On August 31, 1971, Shiv Kumar respondent filed another suit for possession with respect to the same shop against smt. Rajeshwari Devi and others repeating the earlier allegations that he was its tenant in his absence he had been illegally dispossessed by the defendants without following due process of law. In this plaint, the suit was valued for the purposes of court -fee at the annual rental value and a court fee of Rs. 21/ - was affixed on it. The defendants raised a preliminary objection that the suit was not maintainable under Order 9, Rule 9, Civil Procedure Code, because a similar suit already filed had been dismissed under order 9, Rule 8, The following issue was framed : -

(3.) A suit under section 5 of the Act is maintainable on the basis of title whereas a suit under Section 6 thereof can be maintained on the basis of possession with the condition that the possession was disturbed within a period of six months. The order under Section 6 of the Act is not appealable and is not to operate as a bar for another suit on the basis of title under section 5 of the Act.