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SNBP LAW COLLEGE MORWADI

Moot Court 2023-24

SNBP LAW COLLEGE

(AFFILIATED TO SAVITRIBAI PHULE UNIVERSITY, PUNE)

Submitted by – SACHIN V. PAGADE

(LLB III – 3rd Year)
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S.N.B.P LAW COLLEGE

MOOT COURT 2023-24

MEMORIAL ON BEHALF OF PETITIONER

SUBMITTED TO

S.N.B.P LAW COLLEGE, MORWADI, PUNE

(Affiliated to SSP University, Pune)

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SUBMITTED BY

SACHIN V. PAGADE

S.N.B.P LAW COLLEGE, MORWADI, PUNE

(Affiliated to SSP University, Pune)

IN THE HON’BLE HIGH COURT OF MUMBAI

IN THE MATTER OF

RAJARAM ----------------------------------- PETITIONER

V/S

PRATIK BAJAJ----------------------------- DEFENDANT

RIVISION PEITION ON BEHALF OF THE PEITIONER

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TABLE OF CONTENTS

List of Abbreviations
Index of Authorities
Statement of Jurisdiction

Statement of facts
Statement of issues
Summary of Arguments
Arguments Advanced
Prayer
Evidence
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LIST OF ABBREVIATIONS

Abbreviation Meaning
& And
¶ Paragraph

AIR AllIndiaReporter
Art. Article
Cr. Criminal
Edn. Edition
Govt. Government

HMA HinduMarriageAct

Hon‟ble Honourable
i.e. Thatis
No. Number
PC PrivyCouncil
SC ScheduleCaste
SC SupremeCourt
SCC SupremeCourtCases
u/s UnderSection
v. Versus

Vol. Volume
www World WideWeb
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Index of Authorities

Table of Cases

S.No. Name of the Cases and Case Citation

1. Shankar Ramchandra Abhyankar v. Krishnaji Bapat AIR 1970 SC
1
2. Prem Bakshi v. Dharam dev air 2002 SC 559
Twentieth century fox film corporation v. NRI Film Production
Associates (p) Itd. Air 2003
3. Sheo Kumar Dwiwedi v. Shri Thakur Ji Maharaj

4. Manik Candra v. Devdas Nandy(1986) 1 SCC512 AIR 1986 SC446

5. S. S. Khanna v, Brig.Dhillon; AIR 1964 SC 497

6. Reserve Bank Of India Employees Association v. Reserve Bank of
India;
AIR 1981 AP 246
7. Mitthulal v. Badri Prasad AIR 1981 MP 1
8. Smt. Vidyawati v. Devidas; AIR 1977 SC 397
9. Lata Lalsingh v. Seth Shobhagchand AIR 1986 MP 140
10. Murari Kumar Sarafv. Sri Jagannath Shaw; AIR 1994 Cal 205
11. Rajiv Kumar Sharma v. Smt. Bimla Rani Aggarwal 1984 Rev LR
350
12. Hindustan Aeronautics Ltd. V. Ajit AIR 1973 SC 76
13. Ramlal and Anr. v. Hariram; AIR 1959 Raj 95
14. Sidramappa v. Rajashetty and Ors. 1970 3SCR 319
15. Gurbux Singh v. Bhoora Lal AIR 1964 SC 1810
16. Narashatti Kenpanna v. Narasappa; AIR 1989 Kant 50
17. Deva Ram v. Ishwar Chand, AIR 1996 SC 378
18. Arunlal Gupta v. Mriganka Mohan Sur and Ors., AIR 1975 SC 207
19. Dullan Prasad v. Smt. Rajeshwari Bibi: AIR 1977 ALL 151
20. Ghashita v. Brahmavati; AIR 1979 All 299
21. Smt. Rajbir Kaur v. S. Chokesiri and Co, AIR 1988 SC 1845
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Treatises, Books, Reports And Digests

1. Sarkar S C, Code of Civil Procedure, Lexis Nexis, Butterworths Wadhva,

Gurgaon, 2006, 21 Ed.
2. Commercial's The Code of Civil Procedure, 1908, commercial law publishers
(India) Pvt. Ltd. 2023 Edition.
3. Dr. Avatar Singh, Code of Civil Procedure, Central Law Publications, Allahabad,
2012, 3rd Ed.

ACTS AND STATUTES

1. CODE OF CIVIL PROCEDURE, 1908
2. MAHARASTRA RENT CONTROL ACT, 1999
3. TRANSFER OF PROPERTY ACT

INTERNET SITES

1. www.manupatra.com

2. www.westlaw.com

3. www.scribd.com

Database Referred

1. Manuparta

2. AIR online

Journals Referred

1. All India Reporter

4. Supreme Court Cases
3. Indian Law Reporter
2. Supreme Court Cases
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STATEMENT OF JURISDICTION

THE PETITIONER IN PRESENT CASE HAS APPROACHED HON’BLE HIGH COURT OF

MUMBAI, SECTION 115 OF THE CIVIL PROCEDURE CODE

Jurisdiction:
The Defendant respectfully submits to this Jurisdiction invoked by the petitioner.

Sec. 115 Revision

1. The high court may call for the record of any case which has been decide by any court subordinate
to such high court and in which no appeal lies thereto, and if such

subordinate court appears

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity. the
high court may make such order in the case as it thinks fit:

Provided that the high court shall not, under this section, vary or reverse any order made, or any order
deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been in
favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

2. The high court shall not, under this section vary or reverse any decree or order against which an
appeal lies either to the high court or to any court subordinate thereto.

3. A revision shall not operate as a stay of suit or other proceeding before the court except where such
suit or other proceeding is stayed by the high court.
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STATEMENT OF FACTS

For the sake of brevity and convenience of this Hon‟ble Court the facts of the present case aresummarized as
follows:

(a) The Appellant and defendant have tenant and Landlord relation in between them. The defendant
given his ancestral house to the appellant on rent since October 2000. The appellant tenant paid rent
amount to the defendant landlord till September 2015 .
(b) In As per the rent agreement condition decided before the appellant can stop payment of rent in case
of any maintenance of the house made by the appellant tenant till the amount fully recovered in the
form of unpaid rent.
(c) In August 2015 Appellant made a maintenance work of the rented house of slab leakage work also
constructed braked compound and colored the house of which cost around Rs. 50,000/-.
(d) As per the condition of rent agreement the defendant landlord cannot demand for the rent amount till
the amount of maintenance Rs 50,000/- fully recovered by the appellant tenant from the pending rent
amount in form of maintenance of the property. Payment for maintenance of the property considers
as advance payment of rent hence the defendant has no right to claim non-payment of rent for the
benefit of ejectment suit.

Hence Ejectment suit decided by the Civil Court Junior Division not considered the above
facts while deciding the suit. The petitioner has right to cover all the paid arrears
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STATEMENT OF ISSUES

Issue 1: whether the present suit is maintainable under section 115 of code of civil procedure, 1908?

Issue 2: whether the appellant can claim bar on the institution of a suit by respondent under Order II
Rule 2 of CPC or not?

SUMMARY OF ARGUMENTS on Statement of Issues

Issue 1: whether the present suit is maintainable under section 115 of code of civil procedure, 1908?

It is humbly submitted before the hon'ble court that the present petition is maintainable under sec. 115
of the civil procedure, 1908. The petitioner fulfills the ingredients of the Sec 115 of CPC. The ruling
of Civil Court (junior Division) is illegal in the eyes of law under this mentioned section. This is clear
case of Res Judicata and therefore Civil Court (Junior) Division should not have admitted the case.

Issue 2: whether the appellant can claim bar on the institution of a suit by respondent under Order II
Rule 2 of CPC or not?

it is humbly submitted before this hon'ble court that petitioner can claim bar on the institution of a suit
by respondent under Order II Rule 2 in the court of Civil Court (Junior) division because there are
same facts and circumstances covered under the essentials of Order II Rule 2 of CPC.
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ADVANCED ARGUMENTS

Issue 1: whether the present suit is maintainable under section 115 of Code of Civil Procedure, 1908?

It is humbly submitted by the Hon'ble court that the present suit is maintainable under sec. 115 of the code of
civil procedure, 1908.

Section 115 (1) of the civil procedure code empowers the high court to call for the record of any case which
has been decided by any court subordinate to it and in which no appeal lies to it. It can interfere with the
order of the subordinate court upon happening of either of the three conditions:

a) If the subordinate court appears to have exercised the jurisdiction not vested in it by law or

b) To have failed to exercise the jurisdiction so vested or

c) To have acted in the exercise of its jurisdiction illegally or with

material irregularity.

The proviso to subsection (1) of the section 115 puts a restriction on the power of the high court in as much
as the high court shall not, under this section vary or reverse any order made or any order deciding an issue,
in course of a suit or other proceedings except where the order made would have finally, disposed of the suit
or other proceedings. By way of illustration, it may be stated that if a trial court holds by an interlocutory
order that it has no jurisdiction to the case or that suit is barred by limitation, it would amount to final,
deciding the case and such order would be revisable.

However, it is applicable in those cases, where court has acted illegally despite having explicit knowledge of
the case.

The High Court's revision power cannot be invoked unless the following conditions exist:
1. there must be a case decided;
2. the court deciding the case must be subordinate to the High Court;
3. no appeal should lie to the High Court against the decision;
4. in deciding the case the subordinate court must appear to have;
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction vested in it by law; or
(c) acted in the exercise of its jurisdiction illegally or with material irregularity.

The section empowers the High Court to satisfy itself upon three matters:
1. that the order of the subordinate court is within its jurisdiction,
2. that the case is one in which the court ought to exercise jurisdiction,
3. that in exercising jurisdiction the court has not acted illegally, that is in breach of some
provision of law or with material irregularity.
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If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however
profoundly from the conclusions of the subordinate court upon questions of fact or law.

The powers of the High Court in revision are not available for correction of errors of law, however gross
those errors may be, and whatever may be the result of those errors on the merits of the case.

This power of the High Court is only available where the High Court could legitimately hold that the court
below has exceeded its jurisdiction, or has refrained from exercising a jurisdiction vested in it, or it acted
illegally or with material irregularity in the exercise of that jurisdiction, namely committed such an error of
procedure a mandatory procedure and the error had resulted in failure of justice or some such thing.

The High Court at Allahabad while enunciating the above principles went to the length of holding in Sheo Kumar
Dwiwedi v. Shri Thakur Ji Maharaj that where possibly the court below committed an error in regard to its view of
what was formal defect within the meaning of Rule 1 of Order. 23 (relating to withdrawal of suit or abandonment of
part of claim), or an error in regard to what could be deemed sufficient grounds within the meaning of rule 1 (3) (b) of
Order 23 of the Code of Civil Procedure. The error was at best an error of law and not an error that in any manner
affected the jurisdiction of that court to make or refuses to make an order which that Court could under the provisions
of Order 23, and therefore the revision jurisdiction could not be exercised

In this particular case, the Civil Court (Junior Division) has made followings errors:

a) (i) As per Sec 11 of the Code of Civil Procedure :

Res judicata.-No Court shall try any suit or issue in which the matter directly and substantially
in issue has been directly and substantially in issue in a former suit between the same parties,
or between parties under whom they or any of them claim, litigating under the same title, in a
Court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by such Court.

In view of above provision, the second case instituted by Civil Court (Junior) on behalf of appellant Mr. Pratik
Bajaj comes under the purview of Res Judicata as the same cause has been decided by the Small Causes
Court, Pune in September 2015. This is done inspite of protest filled by Defendant.

(ii) as per Section 33 of The Maharashtra Rent Control Act, 1999, the Civil Judge (junior) division and
Court of Small Causes are kept at same footing. Therefore, insistence of Rs. 1000/- in second court is
completely barred and it is not appealable.

b) As per Order II Rule 2

Suit to include the whole claim.-

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect
of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the
suit within the jurisdiction of any Court.
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(2) Relinquishment of part of claim.-Where a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim, he shall
not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in
respect of the same cause of action may sue for all or any of such reliefs; but if he omits,
except with the leave of the Court, to sue for all such reliefs, he shall not.. afterwards sue
for any relief so omitted.

Explanation.- For the purposes of this rule an obligation and a collateral security for its
performance and successive claims arising under the same obligation shall be
deemed respectively to constitute but one cause of action.

Through the plain reading of case, it is evidently clear that the Both the cases were same or
consequent on the same cause. In the first case was filed for the Rent increase and in second
case, suit was filed for rent due with increment expected and eviction. Therefore, both the cases
were same and as per provision, it is barred.

c) As per the Maharashtra Rent Control Act, 1999,

Section 34, Sub

section (1)

Provided that no such appeal shall lie from

-
a) a decree or order made in any suit or proceeding in respect of which no appeal
lies under the Code of Civil Procedure, 1908;

b) a decree or order made in any suit or proceeding (other than a suit or proceeding
relating to possession) in which the plaintiff seeks to recover rent in respect of
any premises and the amount or value of the subject matter of which does not
exceed-

i. where such suit or proceeding is instituted in Brihan Mumbai Rs. 10,000;

and
ii. where such suit or proceeding is instituted elsewhere, the amount upto which the
Judge or Court specified in clause (b) is invested with jurisdiction of a Court of
Small Causes, under any law for the time being in force;

In view of above provision, there is no provision of appeal particularly in this case and plaintiff
was having only option to go for Revision.
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Issue 2: whether the appellant can claim bar on the institution of a suit by respondent
under Order 2, Rule 2 of CPC or not?

It is humbly submitted before the hon'ble court that suit is barred by the provisions of Order II.
Rule2 of CPC.

Order II, Rule 2 of CPC:

(1) Suit to include the whole claim- (1) Every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of the cause of action; but a
plaintiff may relinquish and portion of his claim in order to bring the suit within the
jurisdiction of any Court.

(2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or

intentionally relinquishes, any portion of his claim, he shall not afterwards sue in
respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs- A person entitled to more than one
relief in respect of the same cause of action may sue for all or any of such
reliefs; but if he omits, except with the leave of the Court, to sue for all such
reliefs, he shall not afterwards sue for any relief so omitted.

Explanation. For the purposes of this rule an obligation and a collateral security for its
performance and successive claims arising under the same obligation shall be
deemed respectively to constitute but one cause of action.

A bare perusal of the above provisions indicates that if a plaintiff is entitled to several reliefs
against the defendant in respect of the same cause of action, he cannot split up the claim to omit
one part of the claim and sue for the other. If the cause of action is the same, the plaintiff must
place all his claims before the court in one suit as order II Rule 2 is based on the cardinal
principle that the defendant should not be vexed twice for the same cause. In the case of Ramlal
and Anr. v. Hariram, (case no 18), the court discussed the jurisprudence of Order II Rule 2 which
words based on principles of "Res Judicata". The doctrine of Res Judicata is based on the three
maxims;

1) Nemo debet bis vaxari pro una et eadem causa (no man should be vexed twice for the
same cause of action);
2) Interest republicae ut sit finis litium (it is in the interest of the state that there should be an
end to a litigation i.e., there should be no jurisdictional, factual or legal error in the
judgment or decree).
3) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct ie.
There should be no jurisdictional, factual, or legal error in the judgment or decree).

While explaining the concept of Order 2 Rule 2, the Supreme Court in the case of Deva Ram Vs.
Ishwar Chand 1996 AIR (SC) 378 has held that:

"12 ....a bare perusal of the above provisions would indicate that if a Plaintiff is entitled to
several reliefs against the Defendant in respect of the same cause of action, he cannot split up the
claim so as to omit one part of the claim and sue for the other. If the cause of action is the same,
the Plaintiff has to place all his claims before the Court in one suit as Order II, Rule 2 is based on
the cardinal principle that the Defendant should not be vexed twice for the same cause.
In Sidramappa Vs. Rajashetty and Ors. 1970 AIR SC 1059, it was held that if the cause15of action
on the basis of which the previous suit was brought, does not form the foundation of the
subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he
sought in the subsequent suit, the latter namely, the subsequent suit, will not be barred by the rule
contained in Order 2 Rule 2, CPC.

In a larger bench judgment of Gurbux Singh Vs. Bhura Lal 1964 AIR SC 1810, it was observed:

"In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the
defendant who raises the plea must make out (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based; (2) that in respect of that cause of
action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than
one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for
which the second suit had been filed. From this analysis, it would be seen that the defendant
would have to establish primarily and to start with, the precise cause of action upon which the
previous suit was filed, for unless there is identity between the cause of action on which the earlier
suit was filed and that on which the claim in the later suit is based there would be no scope for the
application of the bar"

Thus, to constitute a bar under Order 2 Rule 2 of CPC from institution of a fresh suit, it must be
established that the second suit is based upon the same cause of action, as of the earlier suit. The
term "Cause of Action" refers to a set of facts or allegations that make up the grounds for filing a
lawsuit. A Cause of Action is therefore by its very nature essential to a Civil Suit, since without a
Cause of Action a Civil Suit cannot arise.

In the instant matter, the previous suit was filed for decision of the rent to be paid by Raja Ram,
which was dismissed by the court. At the later stage, a subsequent suit was brought by the
respondents for ejectment and to recover rent at the rate of Rs. 1000 per month as Raja Ram
refused to pay any further after the first suit. The cause of action in the subsequent suit was,
therefore, completely same as demand of money is same and eviction is consequent upon not
paying the increased rent. Here the defendant cannot take plea that the previous suit was for non-
payment of the revised rent, and whilst the later is on ejectment and possession of the property
with rent.

Thus, in the present matter both the suits instituted in the Court of law are based on same cause of
action.
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Wherefore in the light of issues raised, arguments advanced and authorities cited,
the Counsels on behalf of the Plaintiff humbly pray before thisHon’ble Court that
it may be pleased to adjudge and declare that:

1. The present appeal is maintainable.

2. The cause of action of both the suit are same under order II, Rule 2.
and pass any order relief in favor of the plaintiff which is in conformity to the principles of
Justice, Equity and Good Conscience.

Sd/-

SACHIN V. PAGADE
Counsel for the Plaintiff