LexJAYANTILAL CHIMANLAL PATEL versus VADILAL PURUSHOTTAMDAS PATEL
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[2017] 1 S.C.R. 829 JAYANTILAL CHIMANLAL PATEL v. VADILAL PURUSHOTTAMDAS PATEL (Civil Appeal Nos. 3056-3057of2017) FEBRUARY 21, 2017 [DIPAK MISRA, A. M. KHANWILKAR AND MOHAN M. SHANTANAGOUDAR, JJ.] Code of Civil Procedure, 1908 - Or. II, r. 2 - Suit to include the whole claim - Relinquishment of part of claim - Plea 11/0r. JI, r. 2 - Sustainability of - Held: Filing of the plaint of earlier suit and proving it as per lmv is imperative to sustain the plea of 01: II, r. 2 - Conclusion arrived at by the High Court that the suit instituted by the appellant was hit by Or. JI, r. 2, cannot be sustained, since there was no mention that the plaint in the earlier suit was proved Disposing of the appeals, the Court HELD: 1.1 Filing of the plaint of earlier suit and proving it as per law is imperative to sustain the plea of Order 2 Rule 2 CPC. Unless that is done, the stand would not be entertainable. [Para 11] [833-B-C] 1.2 On a scrutiny of the entire Judgment, there is no mention that the plaint in the earlier suit was proved. The conclusion arrived at by the High Court on the basis that the suit instituted by the plaintiff-appellant was hit by Order 2 Rule 2 CPC, cannot be sustained. However, the controversy does not end there. The trial court and the appellate court have adverted to the merits of the case, that is, whether the tenant had constructed any permanent structure without the consent of the landlord. It is manifest that the High Court did not advert to the same. [Para 14] [834-C-D] 1.3 The matter is remitted to the High Court for proper appreciation of the material on record. If the High Court from the original records finds that the plaint had been brought on record and proved as per law, it would be bound to advert to the plea of Order 2 Rule 2 within the parameters of the said principle. 829 A B c D E F G H 830 A B c D SUPREME COURT REPORTS [2017] l S.C.R. If the plaint has not been brought on record and proved, prayer for amendment shall not be entertained to bring the plaint on record by way of additional evidence by taking recourse to Order XLI Rule 27 CPC. In that event, the High Court shall proceed only to deal with the merits of the case, that is, whether the plaintiff has made out a case under Section 13(b) of the Bombay Rents, Hotel and Lodging House Rates Control Act,1947. [Para 15] [834- D-F] Gurhux Singh v. Bhuora/al AIR 1964 SC 1810: [1964] SCR 831; Jichhu Ram and Others v. Pearey Pasi and Another AIR 1967 Patna 423 - referred to. [1964] SCR 831 AIR 1967 Patna 423 Case Law Reference referred to referred to Para 10 Para 12 CIVILAPPELLATE JURISDICTION: Civil Appeal Nos. 3056- 3057 of2017. From the Judgment and Order dated 01.04.2014 of the High Court'Of Gujarat in Civil Revision Applications No. 172-173 of2006. Ms. Pyo Ii, Somesh Chandra Jha, Ejaz M. Qureshi, Ad vs. for the E Appellant. F G H Tanmaya Agarwal, Jatin Zaveri, Neel Kamal Mishra, Advs. for the Respondent. The Judgment of the Court was delivered by DIPAK MISRA, J. I. Leave granted. 2. The appellant-landlord instituted HRP Suit No.686 of 1992, seeking pennanent injunction against the original tenant, the predecessor- in-interest of the respondents herein, restraining them from constructing any permanent structure on the tenanted premises and further from subletting the same or transfer it in any manner. The learned trial Judge vide judgment and decree dated 12" Mafch, 1999, partially decreed the suit restraining the respondents from subletting or transferring the suit premises. 3. Being grieved by the aforesaid judgment, the appellant preferred Civil Appeal No.79of1999. It is necessary to state here that JAYANT!LAL CHIMANLAL PATEL v. VADILAL PURUSHOTTAMDAS PATEL [DIPAK MISRA, J.] the appellant also initiated an action for eviction forming the subject matter of HRP Suit No.1804 of 1998 before the Small Causes Court, Ahmedabad, on the ground that the respondent-original tenant had erected permanent structure on the premises without the consent of the landlord. It is apt to note here that the same is one of the grounds as find mention under Section 13 of the Romhay Rents, Hotel and Lodging House Rates Control Act, 194 7, (for short, 'the 1947 Act') which is applicable in the State of Gujarat. 4. The learned trial Judge dismissed the suit being hit by the principle of Order 2 Rule 2 of the Code of Civil Procedure, as well as on merits. 5. The sai
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