BABU BHAI KASYAP Vs. LEGAL REPRESENTATIVES

JUDGEMENT

(1.) PETITIONER -defendant has filed this revision petition under Section 115 CPC for assailing the impugned order dated 12th September, 2013 passed by the learned Civil Judge (Senior Division), Abu Road, District Sirohi, whereby his application under Order 7 Rule 11 CPC is dismissed.

(2.) THE facts, in brief, are that a suit for eviction of the premises is filed by Late Prafulchand D. Contractor against the petitioner before the learned trial Court after serving a notice under Section 106 of the Transfer of Property Act, 1882 (for short, 'T.P. Act'). During the pendency of the suit, original plaintiff, Prafulchand D. Contractor expired, and therefore, his legal representatives were brought on record and as such they have been arrayed as respondents in the present revision petition. The petitioner -defendant, in his application under Order 7 Rule 11 CPC has laid before learned Court below, inter alia, averred that the premises known as Lake View Bungalow, House No. 344, Nakki Lake Road is let out to him comprising of five rooms, kitchen, storeroom, latrine, bath and baramda. It is also averred that as per the version of respondent -landlord, servant room quarter was not part of the tenancy and on that quarter petitioner has made illegal encroachment. Therefore, relying on this assertion of respondent -plaintiff, the petitioner has pleaded in the application that as servant room quarter was not part of tenancy, mere serving of notice under Section 106 of the T.P. Act has not accrued any causes of action to the respondent -plaintiff for laying suit for eviction, and the suit as such is barred by law. Petitioner has also stated in the application that vis -à -vis servant room quarter, suit for eviction is not tenable and respondent -landlord is required to file a suit for possession, and therefore, the suit of plaintiff suffers from vice of mis -joinder of causes of action within the four corners of Order 2 Rule 4 CPC. The application is contested by the respondent -landlord and reply to the same is submitted denying all the allegations. In the return, it is, inter alia, pleaded by the respondent -plaintiff that if the averments contained in the plaint are examined then it would ipso facto reveal that the respondent -plaintiff has prayed for eviction from the rented premises, which also includes servant room quarter. That apart, the respondent -plaintiff has also placed reliance on the notice under Section 106 of the T.P. Act, which was served for termination of the tenancy.

(3.) MR . Mehta, learned counsel for the petitioner submits that, on the face of it, the suit is barred by law as Section 106 is attracted only when there is a relationship of landlord and tenant between the rival parties for the premises in question. Mr. Mehta would contend that when the respondent -plaintiff has pleaded that the petitioner has encroached over the servant room quarter, the said portion of the premises cannot form part of the tenancy and as such mere serving of notice under Section 106 cannot furnish any cause of action to the respondent -plaintiff for maintaining suit for eviction. Substantiating his argument, Mr. Mehta has urged that for servant room quarter, the remedy available to the respondent -plaintiff is suit for possession and suit for eviction as such is not maintainable. Mr. Mehta has also urged that the suit filed by the respondent -plaintiff suffers from the vice of mis -joinder of causes of action within the four corners of Order 2 Rules 3 & 4 CPC. While attacking the impugned order, Mr. Mehta has vehemently submitted that, on the face of it, impugned order is bad in law inasmuch as the learned trial Court, while considering application under Order 7 Rule 11 CPC, has also examined the written statements and subsequent pleadings, which cannot be made as a basis for rejection of application under Order 7 Rule 11 CPC. In support of his contentions, learned counsel has placed reliance on the following legal precedents: -