The petitioner M.M Das filed a civil revision before the learned District Judge, Cuttack pleaded that the defendant was a tenant but he illegally established titled over his land and done unauthorized occupation, therefore, he was liable to pay his rent Rs 950 per month from November 2007 to 30.9.2008 and for his unauthorized used he has to pay Rs 25,650 for occupying the vacant possession. but the Trial court held that the suit is not maintainable under Section 115 C.P.C and dismissed it. Therefore petitioner M.M Das has filed a writ petition before the High Court Odisha.
1) Whether the maintainability of the suit is a preliminary issue?
1) The plaintiff argues that the defendant is a tenant for the two shop rooms and he takes over the title of the plaintiff over the said shop rooms.
2) also there is no tenancy agreement between the plaintiff and the defendant and the petitioner has a suit for the claim of independent title and possession.
1) The defendant pleaded that the said writ petition was already dismissed by the court therefore the suit is not maintainable.
2) And the Defendant succeeds in establishing his title over two shop rooms, the plaintiff fails to establish the relationship of landlord and tenant therefore the suit for recovery of house rent and damages will succeed if the plaintiff proves the relationship of landlord and tenant.
After hearing both sides, the Court held that the defendant can not deny the title of the plaintiff given the house rent agreement. The maintainability of the suit due to the pendency of the Bebandobasta case, can not be taken as a preliminary issue. Though the trial court observed that the defendant has the liberty to claim the title in his suit, this preliminary issue can not stand here. Also, the petitioner only claimed his independent title in a suit but does not mention the money suit, the right, title, and interest therefore the suit of possession can not be adjudicated even if the plaintiff provides evidence. On the point of the permanent injunction of the suit, the court held that in this case there is no event occurring to arouse the issue of a permanent injunction.
The court cites the case of Dulana Dei, for consequential relief other than a declaration of the right, title, and interest for further relief. The suit was hit under section 34 of the specific relief act because the plaintiff asks for a necessary amendment to comply with the provisions of section 42. In the case of Anthula Sudhakar, the question arises regarding possession only and therefore the court allows a suit for a permanent injunction but in this case, this decision does not help the plaintiff. In this case, the Court held that the preliminary issue by the petitioner does not come under the categories of cases cited by the court and the plaintiff fails to prove the relationship of landlord and tenant between the parties therefore defendant claims for the independent title would not go. Considering this fact the court held that the issue of maintainability of the suit should not be decided as a preliminary issue because it is not contemplated under Order 14 rule 2(2) C.P.C and also it involves a mixed question of facts and law. Therefore the court finds no merit in the writ petition and therefore it is dismissed.
Under the Specific relief act, both the landlord and tenant have the right to protect themselves. Therefore without the due procedure of law, the landlord can not force tenants to dispossess the tenants from his possession. In this case, the court can not decide the question of maintainability of the suit as a preliminary issue because the court observes that the defendant has the liberty to claim the title and this issue is a mixed question of facts and laws.