Case: Jayantilal Chimanlal Patel Vs. Vadilal Purshottamdas Patel

2. The appellant-landlord instituted HRP Suit No.686 of 1992, seeking permanent 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 12th March, 1999, partially decreed the suit restraining the respondents from subletting or transferring the suit premises

Reasoning: 9. To appreciate the submissions raised at the Bar, we have carefully perused the common order passed by the High Court in both the civil revision applications. As we find that the High Court has adverted at length to the facet of Order 2 Rule 2. On a scrutiny of the entire judgment, we do not find that there is any mention that the plaint in the earlier suit was proved11. From the aforesaid statement of law, it is clearly discernible that 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 entertainable13. Though Mr. Tanmay Agarwal, learned counsel for the respondents has made enormous effort to distinguish the decision in Gurbux Singh (supra), in our considered opinion, the same is not distinguishable. It is mandatory that to sustain a plea under Order 2 Rule 2 of the Code of Civil Procedure, the defendant is obliged under law to prove the plaint and the proof has to be as per the law of evidence. We have no hesitation in saying that the ratio in Gurbux Singh (supra) has been properly appreciated by the Full Bench of the High Court of Patna in Jichhu Ram (supra)14. In view of the aforesaid, we are not able to sustain 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. 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 has not adverted to the sameWe may hasten to clarify that 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. Be it noted, 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 of the Code of Civil Procedure16. We may hasten to add that as far as the revision arising out of refusal of the order of injunction is concerned, it does not deserve to be dwelt upon by the High Court as we do not see there is any justification to do so. The conclusion on that score by the High Court is justified.