JAIN PALACE THROUGH RAKESH JAIN Vs. SANDEEP SINGH

JUDGEMENT

(1.) The present Revision Petition arises out of a suit filed by the respondent for eviction of the petitioner from the demised premises comprised of a shop situated at Residency Road, Jammu. The premises are in possession of the petitioner as tenant thereof. The respondent in his suit has sought eviction of the petitioner primarily on two grounds; one that with the valid termination of the tenancy of the petitioner, he has no right to continue in possession and, therefore, deserves to be directed to deliver the possession of the premises to the respondent; and second that the suit shop is required by the respondent for his personal use and occupation.

(2.) The respondent has also prayed for compensation for unauthorized use and occupation of the suit premises by the petitioner even after the termination of his tenancy. The petitioner is contesting the suit and has filed his written statement. The trial Court has even framed the issues and directed the respondent-plaintiff to lead his evidence. On 15.04.2019, when the case came up for the evidence of the respondent-plaintiff, the petitioner filed an application for rejection of the plaint on the ground that the averments made in the plaint clearly demonstrate that the respondent has failed to validly determine the tenancy and, therefore, no cause of action can be said to have accrued to the respondent to file the suit. It is further submitted that the suit filed by the respondent is hit by the principle of res-judicata as his earlier suit filed on the same cause of action was dismissed by the competent Court of jurisdiction. The application presented by the petitioner under the provisions of Order 7 Rule 11 of the Code of Civil Procedure (for short, "the CPC") was contested by the respondent. The trial Court after hearing learned counsel for the parties and analyzing the legal and factual aspect of the case, rejected the application vide its order dated 08.06.2019, which is impugned in this Revision Petition.

(3.) Learned counsel for the petitioner, who had moved the application for rejection of the plaint, in support of the grounds of challenge taken in this Revision Petition submits that for maintaining a suit for eviction under the Jammu and Kashmir Transfer of Property Act (hereinafter referred to as "the State Act"), valid termination of tenancy in terms of Section 106 of the State Act is sine qua non. Elaborating his arguments, learned counsel for the petitioner submits that on perusal of the pleadings in the plaint and looking to the averments made in the Notice, in the light of terms and conditions of the Rent Deed attached with the plaint, it is evident that the Notice dated 27.11.2018 served by the respondent on the petitioner, cannot be said to have terminated the tenancy of the petitioner validly. He urges that Notice of 15 days, which is required for termination of month to month tenancy, must expire with the end of the month of tenancy, which apparently has not happened in the instant case. He raises another argument with regard to the suit of the respondent being barred by the principle of resjudicata. It is stated that the respondent had earlier filed a suit of eviction about 40 years back on the ground of personal necessity, which was later on settled. The respondent was permitted to continue in the possession and the plea of the respondent that he required the suit shop for personal occupation was consequently abandoned without permission of the Court to re-agitate the same. He, therefore, submits that the instant suit, which is also primarily based on personal use and occupation, is barred by the principle of res-judicata. He relies upon the judgment of this Court rendered in the case of F2 Fun and Fitness Pvt. Ltd. Vs. Golden Globe Fitness Pvt. Ltd,2018 6 JKLT 234 and T. Arivandandam Vs. T.V.Satyapal, 1977 4 SCC 467 to bolster his submissions.