TEAM CODE: NMCC 2019-07-P

ND
2 NATIONAL MOOT COURT COMPETITION, 2019
DEPARTMENT OF LAW, UNIVERSITY OF NORTH
BENGAL

BEFORE THE HON’BLE HIGH COURT OF METROPOLIS

MS. RIYA (PETITIONER)

VERSUS

1. MR. RAMAKANT SHUKLA (RESPONDENT NO. 1)

2. MR. RAHUL (RSPONDENT NO. 2)

UPON SUBMISSION TO THE HON’BLE HIGH COURT OF

METROPOLIS, INDICA

MEMORIAL ON BEHALF OF THE PETITIONER

 2ND NATONAL MOOT COURT COMPETITION, 2019
DEPARTMENT OF LAW, UNIVERSITY OF NORTH BENGAL
[TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF AUTHORITIES ........................................................................................................iii

JUDICIAL DECISIONS .........................................................................................................iii

BOOKS ....................................................................................................................................iv
ONLINE RESOURCES ...........................................................................................................iv
STATUTES ...............................................................................................................................v

STATEMENT OF JURUISDICTION .......................................................................................vi

STATEMENT OF FACTS .........................................................................................................vii

ISSUES RAISED ..........................................................................................................................ix

SUMMARY OF ARGUMENTS ...................................................................................................x

ARGUMENTS ADVANCED ........................................................................................................1

I. WHETHER THE PRESENT SUIT IS MAINTIANBLE BOTH IN LAW AND IN FACT?

...............................................................................................................................................1
II. WHETHER THERE IS LANDLORD AND TENANT RELATIONSHIP
BETWEEN
MS. RIYA AND MR. RAMAKANT SHUKLA UNDER THE
TRANSFER OF PROPERTY ACT, 1882
ACT? ....................................................................................................................................
........8

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III. WHETHER CONCEALMENT OF FACT OF UNEMPLOYMENT IS JUST AND

REASONABLE GROUND FOR WITHDRAWAL FROM CONJUGAL SOCIETY?
...............................................................................................................................................1
0

A. CONCEALMENT OF RESPONDENT’S UNEMPLOYMENT HAS CAUSED

MENTAL TRAUMA TO THE PETITIONER............................................................................10

B. MENTAL CRUELTY IS REASONABLE GROUND FOR WITHDRAWAL

FROM
CONJUGAL
SOCIETY......................................................................................................................11

IV. WHETHER THE HIGH COURT OF METROPOLIS, INDICA HAS THE POWER TO
TAKE UP ANY CASE FROM A SUBORDINATE COURT UNDER ARTICLE 227 OF
THE CONSTITUTION OF
INDICA? ................................................................................13

A. SCOPE OF POWER UNDER ARTICLE 227

........................................................................................................................................
13

B. NO MANIFESTATION OF GRAVE INJUSTICE

........................................................................................................................................
14

C. SUO MOTU INTERVENTION

........................................................................................................................................
14

D. CIRCUMSTANCES REQUIRED IN ORDER TO INVOKE ARTICLE 227

........................................................................................................................................
15
PRAYER ...............................................................................................................................................................
.18

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[INDEX OF AUTHORITIES]
INDEX OF AUTHORIES

JUDICIAL DECISIONS

Parsun Chakraborty v. Smt. Indira Jaiswal (2016) 4 Cal LT 420

Wayram Singh v. Amannath ,AIR 1954 SC 215

Banarjee D.N v. P.R Mukherjee , AIR 1953 SC 58

Achutananda Baidya v. Prafullya Kumar Gayen (1997) 5 SCC 76 : AIR 1997 SC 2077

Surya Dev Rai v. Ram Chander Rai ,(2003) 6 SCC 675

Rahul Jain v. SMT. Namrta Jain ,WP-705-2017

Estralla Rubber v. Dass Estate (P) Ltd., (2001) 8 SCC 97

Faquir Chand Anant Ram v. Gopi Chand , AIR 1962 Punj 117 (120) ;

S.Barrow v. State of UP,AIR 1958 All 154 (158) ; ILR (1957) 2 All 88

Rani Mohanraj And Anr. v. P. Rajarathinam , 1999-2-LW 757

Amzad AH v. Marfat AH, (1998) 2 Cal LT 462

Dharagadhra Chemical Works v. State of Saurashtra, AIR 1957 SC 264 : 1957 SCR 152 ;

Khalil v.Tufel, AIR 1989 SC 184

Satyanarayana Laxminarayan Hegde v. Mallikarjuna Bhavanappa Tirumale , AIR 1960 SC

137 (142) : 1960 (1) SCR 890
Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895 : 1963 Supp. (2) SCR 570

Rukuranand v. State of Bihar, AIR 1971 SC 746 (748) : (1971) 3 SCC 167;
Gujarat Steel Tubes Limited v. Mazdoor Sabha, Gujarat Steel Tubes , AIR 1980 SC 1896:
(1980) 2 SCC 593 : (1980) 1 LLJ 137
Dahya Lal v. Rasul Mohammed Abdul Rahum ,AIR 1964 SC 1320 (1323) :1963 (3) SCR 1

Provincial Transport Service v. State Industrial Court, AIR 1963 SC 114 : 1963 (3) SCR
650

State Of Gujarat v. Vakhatsinghji Sursinghji Vaghela, AIR 1968 SC 1481 (1489) :1968

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Babhutmal Raichand Oswal v. Laxmibai R.Trate , AIR 1975 SC 1297 (1301) : (!975) 1 SCC 858

Fatima bibi Usmal Patel v. Manguben Pranbhai Thakkar , 1995 Supp (3) SCC 193

Trimbak Gangadhar Telang v. Ramachandra Ganesh Bhide, AIR 1977 SC 1222 (1977 ) 2
SCC 437

Santosh Kumar v. Mool Singh Bhai , AIR 1958 SC 321 : 1959 SCR 32

Umaji Keshao Meshram v. Radhikabai [AIR 1986 SC 1272]

Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73

Samr Ghosh v. Jaya Ghosh, (2007) 4 SCC 511

Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706

V.Bhagat v. D.Bhagat ,(1994) 1 SCC 337

Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, AIR 1997

SC 152.

Chameli Singh and Ors. v. State of U.P. and Anr., A.I.R. 1996 S.C. 1051

Vijay Kumar v. Suman , (1996) HLR 24 (P&H)

Kamaladevi v. Shivakumarswamy, AIR 2003 Karn. 36;

Kuladeep Kumar Dogra v. Monika Sharma , AIR 2010 HP 58

Kanchanguri v. Chandulal, AIR 1973 Guj.275 ;

R.Natarajan v. Sujatha Vasudevan , C.M.A.Nos.3769 and 1775 of 2010

Satya Devi v. Ajaib Singh , AIR 1973 Raj.20

Syeda Rahimunnisa v. Malan Bi (Dead) By Lrs. &Anr.Etc AIR 2016 SC 4653

Anil Malhotra v.ChanderMalhota And Ors RSA No. 1658 of 2010

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M/S Vasanth Colour Laboratories Private Limited v. SmtDivya W.P. No. 46319/2015

Nalamati Latchanna v. Masina Sriramulu 1993 (1) ALT 26

Bokaro And Ramgur Ltd. v. State Of Bihar AIR 1966 Pat 154

Anil Malhotra v.ChanderMalhota And Ors RSA No. 1658 of 2010

Bharat Nidhi Ltd., v. Shital Prasad AIR 1981 Delhi 251

BOOKS

DR. J. N. Pandey, Constitutional Law of India (Central Law Agency ,Allahabad ,55st edn.,
2018)
th
Sir Dinshaw Fardunji Mulla,The Transfer Of Propert Act (Lexis Nexis, Haryana, 12 edn., 2015)

DR. S.R. Myneni , Code Of Civil Procedure & Limitation Act (Asia Law House, Hyderabad
rd
,3 edn,. 2016)

th
DR. Paras Diwan, Family Law (Narender Gogia & Company , Hyderabad , 10 edn., 2018)
S.N. Misra, The Code of Criminal Procedure,1973 (Central Law Publication, Uttar Pradesh,
20th edn., 2016)
th
DR. Durga Das Basu, Shorter Constitution of India (Wadhwa And Company, Nagput 13
edn., 2001)
 ONLINE RESOURCES
www.indiankannon.org
www.scconline.com
www.manupatra.com
www.lesixnesix.co.in

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[INDEX OF AUTHORITIES]

STATUTES

LIMITATION ACT, 1963

HINDU MARRIAGE ACT, 1955

TRANSFER OF PROPERTY ACT, 1882

WEST BENGAL PREMISES TENANCY ACT, 1997

THE CONSTITUTION OF INDIA,1950

CODE OF CIVIL PROCEDURE, 1908

CODE OF CRIMINAL PROCEDURE, 1973

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[STATEMENT OF JURISDICTION]

STATEMENT OF JUSRISDICTION

The Petitioner submits to the jurisdiction of this Hon’ble Court under Art.226 of the
Constitution of Indica, which allows for the High Court to issue certain writs.

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[STATEMENT OF FACTS]

STATEMENT OF FACTS

I. Ambridge is a town in the state of Metropolis located in the country of Indica.

Jamalpur is another city of Metropolis state, Indica. Both Mr.Rahul and Ms.Riya are
residents of Ambridge and are Hindus who got married under the Hindu Marriage
Act, 1955 in February of 2011. After marriage they moved to Jamalpur where
Mr.Rahul had been working since 2009 and earning a salary of Rs 20,000/- per
month.

II. The couple rented a flat from Mr.Ramakant Shukla (landlord) who made an
agreement for 11 months with Mr.Rahul and Ms. Riya and fixed the rent at Rs.10,
000/- per month. Soon, Ms. Riya started working in a KidZee in Jamalpur and was
paid Rs.5000/- per month. In the last week of May, 2011, Mr.Rahul lost his job due to
which the rent of the property remained due for 6 months consecutively. His spouse
was unaware of the reason for delay in the payment of rent.

III. In November, 2011 the landlord sent a notice expressing his desire to not continue the
agreement with the couple and requested the couple to vacate the premises within one
month. Following this, the unemployed status of Mr.Rahul was revealed to Ms. Riya.
She
left the shared flat on 01st December, 2011. Several futile attempts were made by her
spouse to talk to her. During the absence of Ms. Riya, repeated requests were made to
Mr.Rahul to pay the rent, but the payment remained irregular in nature.

IV. On 22nd April, 2015, Ms. Riya came back to the shared flat and expressed her desire
to
divorce Mr.Rahul. Further, she asked Mr.Rahul to leave the flat and informed
the
landlord that from then onwards she would be staying in the flat and paying the rent.
The
landlord refused and issued a notice for eviction to the couple in May,2015.
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V. When the couple did not vacate, the landlord filed a suit for eviction against the
couple before the Controller in June 2015 contending that he needed the suit
property for his personal use. Simultaneously, a suit for Restitution of Conjugal
Rights was filed by Mr. Rahul before the District Court. The Controller in the suit
for eviction decided in favor of the landlord following which Mr. Rahul left the
suit property. However, Ms. Riya continued to stay on and filed an appeal before
the Tribunal where the Controller’s decision was upheld. The Tribunal asked. Ms.
Riya to vacate the suit property. Aggrieved by the decision of the Tribunal Ms.
Riya is on appeal before this Hon’ble Court.

Aggrieved by the decision of the Tribunal Ms. Riya is on appeal before this Hon’ble
Court.

The High Court has also suo motu taken up the Restitution of Conjugal Rights suit
under Article 227 for adjudication

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[ISSUES RAISED]

ISSUES RAISED

ISSUE I: WHETHER THE PRESENT SUIT IS MAINTAINABLE BOTH IN LAW AND

IN FACT?

ISSUE II: WHETHER THERE IS LANDLORD AND TENANT RELATIONSHIP

BETWEEN MS. RIYA AND MR. RAMAKANT SHUKLA UNDER THE TRANSFER OF
PROPERTY ACT, 1882?

ISSUE III: WHETHER CONCEALMENT OF THE FACT OF UNEMPLOYMENT OF

MR.RAHUL IS JUST AND REASONABLE GROUND FOR WITHDRAWAL FROM THE
CONJUGAL RELATIONSHIP BY MS. RIYA?

ISSUE IV: WHETHER THE HIGH COURT OF METROPOLIS, INDICA HAS THE
POWER TO TAKE UP ANY CASE FROM A SUBORDINATE COURT UNDER
ARTICLE 227 OF THE CONSTITUTION OF INDICA?

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[SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

I. THE PRESENT SUITIS MAINTAINABLE BOTH IN LAW AND IN FACT

It is humbly submitted in Hon’ble Court that the present in not maintainable both in law
and in fact and the Hon’ble High Court has erred in clubbing these two cases.

II. THERE IS LANDLORD TENANT RELATIONSHIP BETWEEN MS. RIYA

AND MR. RAMAKANT SHUKLA UNDER TOP

It is humbly submitted that there is a landlord and tenant relationship between Ms. Riya and
Mr. Ramakant Shukla under the Transfer of Property Act as Ms. Riya comes under the
definition of the term ‘lessee’

III. CONCEALMENT OF FACT OF UNEMPLOYMENT IS REASONABLE GROUND

FOR WITHDRAWAL FROM CONJUGAL RELATIONSHIP BY MS.
RIYA

It is humbly submitted that the concealment of fact of unemployment by Mr. Rahul

constitutes mental cruelty and thereby provides reasonable ground for withdrawal from
conjugal relationship by Ms. Riya.

IV. HIGH COURT HAS POWER UNDER ARTICLE 227 TO TAKE UP ANY CASE
FROM A SUBORDINATE COURT

It is humbly submitted that Article 227 does confer upon the High Court power to take up
any case from a subordinate Court.

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[ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

I. WHETHER THE PRESENT SUIT IS MAINTAINABLE BOTH IN LAW AND IN

FACT?

(¶1.) It is most humbly submitted before this Hon’ble High Court of Metropolis, Indica that the
present suit, Riya V. Ramakant Shukla and Rahul is not maintainable both in law and in fact
as this Hon’ble High Court has erred in Suo motto clubbing two suits of different nature,
having no common remedy.

1
(¶2.) In the case of Syeda Rahimunnisa vs Malan Bi (Dead) By Lrs. &Anr.Etc , it was held
that ‘’Since all the aforementioned five suits were in relation to one suit- land and were
between the same parties pending in different Courts, all the five civil suits were clubbed
together for disposal in accordance with law. Parties adduced common evidence in all the
five civil suits.’’

(¶3.) Further it is mentioned that since the five suits filed were in relation to one suit – land and
were between the same parties pending in different Courts it was clubbed together. On the
other hand in our present case of Riya V. Ramakant Shukla and Rahul the two suits namely
the one filed by Rahul for Restitution of conjugal rights and the other appeal being the one
filed by Riya before the High Court of Metropolis, Indica against the landlord Ramakant
Shukla aggrieved by the decision of the tribunal. Hence in this instance both these suits have
no common relation and hence no common remedy as well. Hence it is contended before this
Hon’ble High Court that clubbing of these two suits are not at all relevant and hence this
clubbing is not maintainable and is liable to be dismissed in limine.

1Syeda Rahimunnisa v. Malan Bi (Dead) By Lrs. &Anr.Etc AIR 2016 SC 4653

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2
(¶4.) In the case of Anil Malhotra vs ChanderMalhota And Ors , the Hon’ble High Court of
Punjab and Haryana, Chandigarh held that , “This judgment will dispose of two appeals bearing
RSA Nos. 1658 and 1795 of 2010, as common questions of law and facts are involved. Both the suits
were clubbed and were decided by a common judgment by the trial Court and even the appeals were
also consolidated and decided by a common judgment, as the suit property is same. Both the appeals
have been preferred by Anil Malhotra, as the suit filed by him seeking partition of the property was
dismissed and the suit filed against him for mandatory injunction and possession was decreed. The
submission is that the primary question in the present litigation is as to whether the Will projected by
the brothers of the Petitioner is a valid document and in case it is not, the property will have to be
shared amongst all the legal heirs, Vidya Rani having died intestate. If the Petitioner succeeds, then
automatically the second suit filed by the brothers of the Petitioner will have to be dismissed as the
Petitioner will not remain in possession of the property merely as a licensee, rather, in his own right.
Even if for arguments' sake, the Will is upheld, still the Petitioner, being in possession of part of the
suit property since long and having made substantial improvements by spending huge amount, even if
he is a licensee, the same cannot be revoked”

(¶5.) Reliance has been placed on this case as in this case it has been explicitly stated that both the
suits were clubbed and were decided by a common judgment by the trial Court and even the
appeals were also consolidated and decided by a common judgment, as the suit property is
same. But in our present case the nature of both the suits being entirely different, (Suit for
matrimonial relief and an Appeal for Rent control) cannot be clubbed and is liable to be
dismissed in limine.

(¶6.) Reliance is also placed on the decision of the High Court of Karnataka in the case of M/S

Vasanth Colour Laboratories Private Limited vs Smt. Divya 3, where the Court held that
the, “Decree holder is the owner of the suit schedule property and same was taken on lease by the
judgment debtor. On expiry of lease period, decree holder filed a suit O.S.NO.836/1981 against the
judgment debtor for ejectment from suit schedule property. Judgment debtor also filed a suit in
O.S.No.3396/1996 seeking specific performance of the contract, contending inter alia that under the
lease deed there is a specific clause for extension to be given for another 14 years after the expiry of
stipulated period and

2
Anil Malhotra v.ChanderMalhota And Ors RSA No. 1658 of 2010
3
M/S Vasanth Colour Laboratories Private Limited v. SmtDivya W.P. No. 46319/201

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same was not extended. Judgment debtor also filed another suit O.S.No.62/2006 seeking for
extension of the period of lease of the suit schedule property. Since above referred three suits were
pending in different Courts of City Civil Court, Bengaluru, judgment debtor filed a Civil Petition
No.60/2011 under Section 24 CPC for clubbing/connecting/consolidating all the suits to be tried in
one Court. While examining said prayer for clubbing/consolidating the suits, a compromise came to
be entered into between the parties, which was placed on record and all the suits were ordered to be
placed before City Civil Court, CCH-9, Bengaluru and directed the said Court to receive the
compromise petition and pass the decree accordingly. In that view of the matter, trial Court
adjudicating O.S.No.836/1981 heard the Advocates, recorded presence of the parties and accepted
compromise petition and pursuant to the same, decree has been drawn in O.S.No.836/1981 in terms
of the compromise. On account of judgment debtor not vacating suit schedule property as agreed to
in the compromise petition, decree holder filed Execution Petition No.1094/2015 and after issuing
cause notice to judgment debtor and holding service sufficient, by impugned order dated 15.10.2015
has ordered for issuance of delivery warrant. Same is questioned in the present writ petition.’’

(¶7.) In the above mentioned case, since all the three suits were interconnected and revolving
around the same subject matter they were decided to be clubbed together. On the other hand
in our present case the two suits mentioned therein are distinct and unique. They are not
inter-related in any way and hence it is humbly submitted that the Hon’ble High Court of
Metropolis Indica has erred in clubbing both the suits.

(¶8.) Additionally, reliance is placed on the case of Nalamati Latchanna vs Masina Sriramulu
(Andhra High Court): Brief Facts: Respondent herein is the Plaintiff is O.S.Nos. 464/83 and
372/88 on the file of the Principal Subordinate Judge's Court, Kakinada. Originally, the
respondent filed O.S.No. 178/83 on the file of the I Additional District Munsif's Court,
Kakinada for declaration of his fishing rights in Chintalacheruvu and consequently to
restrain the defendants therein from interfering with the said rights. A temporary injunction
was also obtained by the respondent-plaintiff restraining the defendants therein from
obstructing him from catching fish. It is under the background that the defendants therein
have obstructed the plaintiff from catching fish and thereby caused damages to the tune of
Rs. 60,000/-, the respondent-Plaintiff filed O.S.No. 464/83 before the Principal Subordinate
Judge's Court, Kakinada against the defendants therein for recovery of the said damages.
Later on, he filed O.P.No. 174/88 before the III Additional District Judge, Kakinada for
transferring O.S.No. 178/83 to the Court of Principal Subordinate Judge, Kakinada for
transferring O.S.No. 464/83
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was pending and sought indulgence of the Court for trying the suits together. Pursuant to the
transfer order, the suit was re-numbered as O.S.No. 372/88.

(¶9.) Judgement Briefing - It is seen that the learned III Additional District Judge while passing
order in O.P.No. 174/88 observed that the matters could be tried together by one and the
same Court in order to avoid conflicting judgments. The learned District Judge further
observed that whether all the matters will be clubbed together or may be tried separately and
simultaneously, is the matter to be decided by the Principal Subordinate Judge, Kakinada.
Under this background, the respondentplaintiff filed I.A.No. 3341/89 in O.S.No. 464/83
praying for clubbing both the suits, recording common evidence and pronouncing common
judgment. The learned Principal Subordinate Judge by order dated 14-2-1990 has allowed
I.A.No. 3341/89 and directed clubbing of the suits together, recording common evidence and
passing common judgment in both the suits. As against this order, the present revision
petition is filed by defendant No. 14 in O.S.No. 464/83. 83.

(¶10.) Sri P.VenkataramanaSarma, learned Counsel appearing for the respondent-plaintiff, has
contended that in order to avoid multiplicity of litigation and conflicting decisions, it is
better the suits could be clubbed together, common evidence could be recorded and common
judgment could be pronounced and, therefore, he justified the order passed by the learned
Subordinate Judge in I.A.No. 3341/89. Sri C. Subba Rao, learned Counsel appearing for the
Petitioner, who is defendant No. 14 in O.S.No. 464/83, has, on the contrary, contended that
these suits cannot be tried together inasmuch as the first suit - O.S.No. 372/88 - is filed by
the respondent herein for declaration of his fishing rights in Chintalacheruvu and for a
consequential relief of restraining the defendants therein from interfering with the said
rights, whereas O.S.No. 464/83 is filed for recovery of damages said to have been caused by
the defendants therein. He further contended that the first suit is for a different relief, that is
to say, for a declaration and the second suit is for damages, it is admitted that the plaintiff
and some of the defendants in both the suits are common and some of the defendants are
strangers. It is under this background, Sri Subba Rao contended that the respondent herein
has to first establish his rights in O.S.No. 372/88 and secondly the extent of damages said to
have been caused by each of the defendants in O.S.No. 464/83 has to be separately assessed.
He has further contended that some of the defendants are admittedly different and, therefore,
the two suits cannot be clubbed and tried together and common judgment cannot be passed.

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(¶11.) No doubt, in cases where parties are common and matter is absolutely similar, to avoid
multiplicity of suits and to eliminate chances of conflicting decisions on the same point,
consolidation of two or more suits can be ordered. Where, however, suits brought by the
same plaintiff are prima facie based on different and independent transactions, the
consolidation cannot be ordered, as there cannot be conflicting decisions.

(¶12.) It is seen that the Trial Court admits that issues are though different and yet, felt that the
subject-matter as well as the oral and documentary evidence that could be let in would
probably be same and, therefore, directed that the above suits should be clubbed and tried
together.

4
(¶13.) Relying upon the decision of the Delhi High Court in Bharat Nidhi Ltd., v. Shital Prasad,
AIR 1981 Delhi 251 Sri Subba Rao contended that there will not be any conflicting
decisions as far as these cases are concerned and as is observed by the trial Court, the issues
are different and, therefore, the suits cannot be clubbed together. As observed by the Delhi
High Court in the above decision, no doubt, in order to avoid multiplicity of suits, the
clubbing of suits together is welcome. But the question is whether the chances of conflicting
decisions would arise in the event of the suit not clubbed together. In the present case, He
contended that he does not find that there would be conflicting decisions if the suits are not
tried together, as the first suit is for declaration of rights and the second suit is for recovery
of damages and when the issues are not similar.

5
(¶14.) In yet another decision in Bokaro&Ramgur Ltd. v. State the Patna High Court, held that
it has to be seen whether or not the non-consolidation of two or mere suits is likely to lead,
apart from multiplicity of suits, to leaving the door open for conflicting decisions on the
same issue, which may be common to the two or more suits sought to be consolidated. It
also held that the convenience of the parties and the expenses in the suits are subsidiary to
the more important consideration viz., whether it would lead to rendering conflicting
decisions on the same point if the suits are not clubbed together.

4Bharat Nidhi Ltd., v. Shital Prasad AIR 1981 Delhi 251

5 Bokaro And Ramgur Ltd. v. State Of Bihar AIR 1966 Pat 154

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As observed by the Patna High Court, it is to be seen that the convenience of the parties and
the expenses involved are to be subsidiary factors to avoid multiplicity of suits where the
chances of avoiding conflicting decisions on the same point are to be taken into
consideration. In the context of the decision of the Patna High Court, it is to be seen
whether there could be conflicting decisions if the suits are not clubbed and tried together.

(¶15.) As discussed by the counsel above, when the issues and nature of the suits are different, It
is difficult to accept the contention of Sri Venkataraman Sarma, learned Counsel for the
respondent-plaintiff that if the suits are not clubbed and tried together, it would lead to
rendering of conflicting decisions. In the present case, the first suit is for declaration of
fishing rights and the second suit is for recovery of damages and tine question of rendering
conflicting decisions, in my opinion, would not arise at all, as the issues are different and
some of the defendants figured are also different in the two suits. Under these
circumstances, the order dated 14-2-90 in I.A.No. 3341/89 in O.S.No. 464/83 was set aside
on the file of tine Principal Subordinate Judge, Kakinada.

(¶16.) Thus from the above judgements it is most humbly submitted before this Hon’ble High
Court of Metropolis, Indica that two or more suits can be clubbed together only when the
following conditions are satisfied:
1) Having Parties in Common.
2) Ability to record common evidence and deliver common judgement, being the cases of
similar nature.
3) The primary matter or the subject matter around which the suits (mentioned to be
clubbed) revolve must be common. As in, if suit 1 is regarding a land dispute then suit 2
must also be in relation with the same land for the two suits to be clubbed together.
4) If the suits proposed to be clubbed are not clubbed then there must be no conflicting
decisions arising from the different Courts in which they are being tried.

(¶17.) In the case of Riya v. Ramakant Shukla and Rahul none of the above conditions comes
into play and moreover there cannot be any conflicting decisions arising if they are not
being clubbed as both the suits are of entirely different nature.

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(¶18.) Thus it is contended that Clubbing of these two cases cannot be done and hence they are
to be dismissed in limine.

The present Suit, Riya V. Ramakant Shukla and Rahul is not maintainable both in
law and in fact

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II. WHETHER THERE IS LANDLORD AND TENANT RELATIONSHIP BETWEEN

MS.RIYA AND MR.RAMAKANT SHUKLA UNDER THE TRANSFER OF
PROPERTY ACT, 1882?

(¶19.) It is humbly submitted on behalf of the Petitioner that there exists a landlord tenant
relationship between Ms. Riya and Mr. Ramakant Shukla under the Transfer of Property
Act,1882. Firstly, it is clarified that the rental agreement in the present case denotes a
lease falling under the definition of lease under section 105 of the transfer of property act.
Along with lease, section 105 also defines Lessor, lessee, premium and rent. It is as
follows

(¶20.) SECTION 105. Lease defined. A lease of immovable property is a transfer of a right to
enjoy such property, made for a certain time, express or implied, or in perpetuity, in
consideration of a price paid or promised, or of money, a share of crops, service or any
other thing of value, to be rendered, periodically or on specified occasions to the transferor
by the transferee, who accepts the transfer on such terms.

(¶21.) Lessor, lessee, premium and rent defined. The transferor is called the lessor, the
transferee is called the lessee, the price is called the premium, and the money, service or
other thing to be so rendered is called the rent.

(¶22.) In the present case, Rahul and Riya took a flat on rent in Jamalpur after shifting to the new
nd
city. Mr. Ramakant Shukla is their landlord who stays on the 2 floor and gives the 1st
floor on rent to Rahul and Riya. Mr. Ramakant Shukla makes an agreement for 11 months
st th
(i.e. from 1 March, 2011 to 28 February, 2012) with Rahul and Riya regarding renting
6
the flat and handing over the premises to both of them at Rs.10,000/- per month . This
confirms that there was a transfer of right to enjoyment of a property. The transferor in the
present case being Mr. Ramakant Shukla.

6 Moot proposition Para 2 and 3

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(¶23.) According to the facts, the rental agreement mentioned that both Ms.Riya and her spouse
would live within the premises as a married couple and to that effect the id proof of both
of them was taken. This implies that both of them would be liable in case any dispute
arises with relation to the lease or the lease property and such. By recognizing both of
them as liable the landlord has impliedly recognized both of them as tenants.

(¶24.) It is further argued that, when the landlord issued a notice of eviction in May 2015 and
filed a suit for eviction before the controller in June 2015 ,he did so against the couple
and not just one of them. This indicates that both of them were recognized as tenants by
the landlord.

7
(¶25.) In the case of Parsun Chakraborty V Smt. Indira Jaiswal , the person against whom
an eviction notice was served under section 6 (4) of the West Bengal Premises Tenancy
Act was held to be a tenant. The reasoning for this was that since the eviction notice was
served upon him it indicated that he was recognized as tenant by the landlady.

(¶26.) It is further submitted that Ms.Riya will be considered as a tenant under Section 2 (g) of
the West Bengal Premises Tenancy Act, 1997 which mentions that, among other things, a
tenant is any person on whose behalf the rent of any premises is payable. In the facts of
the present case, Ms.Riya is dependent on her spouse for her maintenance and her spouse,
Mr.Rahul, used to pay the rent on behalf of both of them. This would bring Ms.Riya
under the purview of the term “tenant” as defined under Section 2 (g) of The West Bengal
Premises Tenancy Act.

(¶27.) It is therefore most humbly submitted that there exists a landlord tenant relationship
between Ms. Riya and Mr. Ramakant Shukla under the Transfer of Property Act, 1882.

There is a landlord and tenant relationship between Ms. Riya and Mr. Ramakant
Shukla
under Transfer of Property Act, 1882.

7
Parsun Chakraborty v. Smt. Indira Jaiswal (2016) 4 Cal LT 420
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III. WHETHER THE CONCEALMENT OF THE FACT OF UNEMPLOYMENT OF

MR. RAHUL IS JUST AND REASONABLE GROUND FOR WITHDRAWAL FROM
THE CONJUGAL RELATIONSHIP BY MS. RIYA?

(¶28.) It is humbly submitted that the concealment of the fact of unemployment of Mr. Rahul
( hereinafter referred as "The Respondent” ) is just and reasonable ground for
withdrawal from the conjugal relationship by Ms. Riya (hereinafter referred as
"Petitioner” ) It is contended on behalf of the Petitioner that the Respondent has
subjected her to mental trauma and therefore shall not be entitled to a decree under
Section.9 of the Hindu Marriage Act (hereinafter referred as “the Act” )
3.1 CONCEALMENT OF THE RESPONDENT’S UNEMPLOYMENT HAS
CAUSED MENTAL TRAUMA TO THE PETITIONER
(¶29.) The Respondent, by concealing the fact of his unemployment from his spouse has caused
significant mental trauma to the Petitioner. To begin with, the Petitioner would like to
clarify that the words torture, agony and trauma are synonyms and can be used
8
interchangeably. In the present scenario, these words indicate a cruel disposition or
conduct that causes serious bodily harm or mental suffering by one spouse to the other.

(¶30.) Mental Cruelty is the conduct of the spouse which causes mental suffering or fear to the
9
matrimonial life of the other. According to facts of the present case, though questioned
repeatedly by the Petitioner as to the reason for the delay in the payment of rent, the
Respondent kept trying to avoid confronting the Petitioner. It has to be noted that, such
studied neglect, indifference or total departure from the normal standard of conjugal
10
kindness causes injury to the mental health of the person subjected to such treatment.

(¶31.) Further, for assessing mental cruelty, it is the facts and circumstances that are crucial.
This stance has been substantiated by the Hon’ble Supreme Court in the case of Parveen
11
Mehta

8 Synonyms of ‘Trauma’, available at : https://www.thesaurus.com/browse/trauma?s=t

(Visited on February 9, 2019).
9Savitri Pandey v. Prem Chandra Pandey, (2002) 2 SCC 73
10 Samr Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
11 Parveen Mehta v. Inderjit Mehta, (2002) 5 SCC 706
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where the Court held that, “A feeling of anguish, disappointment and frustration in one
spouse caused by the conduct of the other can only be appreciated on assessing the
attending facts and circumstances in which the two partners of matrimonial life have
been living.”

(¶32.) Reliance is also placed the judgment of the Hon’ble Supreme Court in the case of

V.Bhagat12, where the Court has held that, “What is cruelty in one case may not amount
to cruelty in another case. It is a matter to be determined in each case having regard to
the facts and circumstances of the case. If it is a case of accusations and allegations,
regard must also be had to the context in which they were made.”

(¶33.) Hence, on assessing the facts of the present case, it is inferred that the Respondent has
acted irresponsibly by not revealing the fact of his unemployment to the Petitioner. It has
to be noted that the disregardful attitude of the Respondent has resulted in the eviction of
the couple from their matrimonial home. This event has rightfully led the Petitioner to
question the stability of their living condition and has strained their matrimonial tie .

(¶34.) It is further argued that the Respondent’s actions have ultimately violated one of the
Petitioner’s basic needs- shelter, since the basic needs of man have traditionally been

accepted to be three – food, clothing and shelter13

(¶35.) Therefore, it is most humbly submitted the Respondent has subjected the Petitioner to
mental trauma by disturbing her state of mind in addition to violating one of her basic
needs.

3.2 MENTAL CRUELTY IS REASONABLE GROUND FOR WITHDRAWAL

FROM CONJUGAL SOCIETY

(¶36.) In the present factual matrix, the Respondent has filed a petition under Section 9 of the
Act for the restitution of conjugal rights. It is contended on behalf of the Petitioner that
the suppression of the fact of unemployment by the Respondent has caused mental
trauma to the Petitioner due to which the Petitioner left the conjugal society of the
Respondent.

12 V.Bhagat v. D.Bhagat ,(1994) 1 SCC 337

13 Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, AIR 1997
SC 152. ; Chameli Singh and Ors. v. State of U.P. and Anr., A.I.R. 1996 S.C. 1051
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(¶37.) It is humbly submitted that the Petitioner has withdrawn from the conjugal society on
the just and reasonable ground of mental cruelty. In the case of Vijay Kumar 14, the
Hon’ble Punjab-Haryana High Court has held that, “…mental torture is a reasonable
ground for the wife to withdraw from the society of the husband”
(¶38.) Further, it is a well established principle of law that a husband is not entitled to a
decree under Section 9 of the Act, if he is found to have treated his wife with cruelty 15
. It has been held in a couple of cases that even ill treatment falling short of legal
16
cruelty is sufficient ground for withdrawal from conjugal society . Since, in the
present case the negligent behavior of the Respondent led to the eviction of the couple
from their matrimonial home, such behavior constitutes cruelty on the part of the
Respondent.
(¶39.) It is contended that material concealment of fact of unemployment by the Respondent
has caused mental trauma to the Petitioner and the Petitioner cannot reasonably be
expected to live jointly with Respondent. A wronged party cannot be required to put
17
up with the other. Therefore, it is most respectfully submitted that the concealment
of the fact of unemployment by the Respondent is just and reasonable ground for
withdrawal from the conjugal relationship by the Petitioner.

Concealment of the fact of unemployment of Mr. Rahul is just and

reasonable ground for withdrawal from the conjugal relationship by
Ms. Riya.

14
Vijay Kumar v. Suman , (1996) HLR 24 (P&H)
15 Kamaladevi v. Shivakumarswamy, AIR 2003 Karn. 36; Kuladeep Kumar Dogra v.
Monika Sharma , AIR 2010 HP 58
16 Kanchanguri v. Chandulal, AIR 1973 Guj.275 ; Satya Devi v. Ajaib Singh , AIR 1973
Raj.20
17 R.Natarajan v. Sujatha Vasudevan , C.M.A.Nos.3769 and 1775 of 2010
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IV. WHTHER THE HIGH COURT OF METROPOLIS, INDICA HAS
THE POWER TO TAKE UP ANY CASE FROM A SUBORDINATE
COURT UNDER ARTICLE 227 OF THE CONSTITUTION OF
INDICA?

(¶40.) It is humbly submitted before this Hon’ble Court that High Court of Metropolis,
Indica is not conferred with the power to withdraw or take up any case from the
Subordinate Court under Article 227 of the Constitution of Indica.
4.1 SCOPE OF THE POWER UNDER ARTICLE 227
(¶41.) It is submitted that the scope of article 227 is confined only to supervisory jurisdiction
and not to original jurisdiction or appellate jurisdiction. It is now settled that the
power of “superintendence” conferred upon the High Court by article 227 is not
18
restricted to administrative superintendence only, but includes the power of judicial
19
superintendence also even where no appeal or revision lies to the High Court under
the ordinary law. But this judicial superintendence or the power under article 227 does
20
not vest the High Court with any unlimited prerogative to correct all hardship or
21
wrong decisions made within the limits of the jurisdiction of the Court or tribunal.
22
(¶42.) In the case of Surya Dev it was held that, “Though the power is akin to that of an
ordinary Court of appeal, yet the power under article 227 is intended to be used
sparingly and only in appropriate cases for the purpose of keeping the subordinate
Courts and tribunals within the bounds of their authority and not for correcting mere
errors. The power may be exercised in cases occasioning grave injustice or failure of
justice such as when (i) the Court or tribunal has assumed a jurisdiction which it
does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure
occasioning a failure of justice, and (iii) the jurisdiction though available is being
exercised in a manner which tantamount to overstepping the limits of jurisdiction.

18
. Wayram Singh v.Amannath,AIR 1954 SC 215
19
. BanarjeeD.N v.P.R Mukherjee, AIR 1953 SC 58 ; AchutanandaBaidya v. Prafullya
Kumar Gayen (1997) 5 SCC 76 : AIR 1997 SC 2077
20
. BanarjeeD.Nv.P.R Mukherjee, AIR 1953 SC 58
21
.BanarjeeD.N v. P.R Mukherjee ,AIR 1953 SC 58
22
.Surya Dev Rai v. Ram ChanderRai ,(2003) 6 SCC 675
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4.2 NO MANIFESTATION OF GRAVE INJUSTICE
(¶43.) It is well known that the supervisory power must be restricted to cases of grave
dereliction of duty and flagrant abuse of fundamental principles of law or justice,
where grave injustice would be done unless the High Court interferes.23
(¶44.) Rahul Jain V. Jai Singh & Ors vs M.C.D. & Anr on 23
September,
24
2010 Undoubtedly, the High Court has the power to reach injustice whenever,
wherever found. The scope and ambit of article 227 of the Constitution of India had
25
been discussed in the case of The Estralla Rubber Vs. Dass Estate (P) Ltd. , [(2001)
8 SCC 97] wherein it was observed as follows:
(¶45.) " The scope and exercise of power under this article involves a duty on the High
Court to keep inferior Courts and tribunals within the bounds of their authority and
to see that they do the duty expected or required of them in a legal manner. The High
Court is not vested with any unlimited prerogative to correct all kinds of hardship or
wrong decisions made within the limits of the jurisdiction of the subordinate Courts
or tribunals. Exercise of this power and interfering with the orders of the Courts or
tribunals is restricted to cases of serious dereliction of duty and flagrant violation of
fundamental principles of law or justice, where if the High Court does not interfere, a
grave injustice remains uncorrected. The High Court can set aside or ignore the
findings of facts of an inferior Court or tribunal, if there is no evidence at all to justify
or the finding is so perverse, that no reasonable person can possibly come to such a
conclusion, which the Court or tribunal has come to."
(¶46.) It is humbly contended before this Hon’ble Court that the instant case of the
matrimonial dispute is pending before the District Court and not been decided and
disposed off yet. There is no judgement rendered as such, let alone an examination
could be made as to whether there was any grave injustice caused or not, and hence,
does not warrant any intervention of the High Court.

23
. BanarjeeD.N v.P.R Mukherjee ,AIR 1953 SC 58
24
. Rahul Jain v.SMT. NamrtaJain,WP-705-2017
25
. Estralla Rubberv. Dass Estate (P) Ltd., (2001) 8 SCC 97
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4.3 SUO MOTU INTERVENTION
(¶47.) Article 227 can be invoked on an application of the aggrieved party or suo motu by
the High Court. The High Court may, in proper cases, interfere under this article, suo
26
motu, i.e., without any application of the party aggrieved. In the case: Rani
27
Mohanraj And Anr. vs P. Rajarathinam on 11 February, 1999: “In a recent
decision of Calcutta High Court reported in (1998) 2 Cal LT 462 (Amzad AH v.
Marfat AH)28it was held that, "Power under article 227 of the Constitution involves a
duty on the part of the High Court to keep all Courts within the bounds of their
authorities and to see that they do what their duty requires." In paragraph 45 of the
same Judgment, their Lordships further went on and said that, "When the High Court
finds that the inferior Court, civil or criminal, has not acted according to the mandate
of law resulting in gross abuse of the process of the Court, the extraordinary power of
the High Court under article 227 of the Constitution can always be exercised."
(¶48.) Thus, it is staunchly contended before this Hon’ble Court that the suo motu power
under article 227 can be exercised only in extreme circumstances resulting in gross
injustice or where there is “error apparent on the face of record”, which can be
prompted only when the inferior Court has in any way travelled and acted beyond the
scope of its jurisdiction or have erroneously refused to perform its duty imposed upon
itself by law. In the case in hand, the District Court hasn’t acted yet and hence no
conclusion as to the occasion of flagrant violation of law can be drawn, which would
warrant intervention by the High Court under article 227.

4.4 CIRCUMSTANCES REQUIRED IN ORDER TO INVOKE ARTICLE 227

(¶49.) The power would not be exercised by the High Court to substitute its own
judgement,29 whether on the question of a fact 30 or of law,31 in place of that of the
Subordinate Courts,

26
.Faquir Chand Anant Ram v.Gopi Chand , AIR 1962 Punj 117 (120) ; S.Barrow v.
State of UP,AIR 1958 All 154 (158) ; ILR (1957) 2 All 88
27
.Rani Mohanraj And Anr. v. P. Rajarathinam , 1999-2-LW 757
28
. Amzad AH v. Marfat AH, (1998) 2 Cal LT 462
29
. Dharagadhra Chemical Works v.State of Saurashtra, AIR 1957 SC 264 : 1957 SCR
152 ; Khalil v.Tufel, AIR 1989 SC 184
30
. Dharagadhra Chemical Works v. State of Saurashtra, AIR 1957 SC 264 : 1957 SCR
152 ; Khalilv.Tufel,AIR 1989 SC 184
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or to correct an error not being an ‘error of law apparent on the face of the
record’.32This
means that the High Court can interfere, under Article 227, in cases of --- (a)
33
Erroneous assumption or excess of jurisdiction. (b) Refusal to exercise
34 35
jurisdiction. (c) Error of law apparent on the face of the record, but not in
36
concurrent finding of the fact as distinguished from a mere mistake of law or error
37 38
of law relating to jurisdiction. (d) Violation of the principles of natural justice. (e)
39
Arbitrary or capricious exercise of authority, or discretion. (f) Arriving at a finding
40
which is perverse or based on on material. (g) A patent or flagrant error in
41
procedure. (h) Order resulting in manifest

31
.Satyanarayana Laxminarayan Hegde v. MallikarjunaBhavanappa Tirumale,AIR 1960 SC 137
(142) : 1960 (1) SCR 890
32
.SatyanarayanaLaxminarayan Hegde v.MallikarjunaBhavanappaTirumale, AIR 1960 SC
137
(142) : 1960 (1) SCR 890
33
. Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC1895 : 1963 Supp. (2)
SCR
570 ;Rukuranandv. State of Bihar, AIR 1971 SC 746 (748) : (1971) 3 SCC 167; Gujarat
Steel
Tubes Limited v.Mazdoor Sabha, Gujarat Steel Tubes , AIR 1980 SC 1896: (1980) 2 SCC
593 :
(1980) 1 LLJ 137
34
. Dahya Lal v. Rasul Mohammed Abdul Rahum,AIR 1964 SC 1320 (1323) :1963 (3) SCR
1 ; Provincial Transport Service v. State Industrial Court, AIR 1963 SC 114 : 1963 (3)
SCR 650 ; State Of Gujarat v.VakhatsinghjiSursinghjiVaghela, AIR 1968 SC 1481
(1489) :1968 (3) SCR
692. observation to the contrary in BabhutmalRaichandOswal v.LaxmibaiR.Trate , AIR 1975
SC 1297 (1301) : (!975) 1 SCC 858 is to be read with caution.
35 . Satyanarayana Laxminarayan Hegde v. MallikarjunaBhavanappaTirumale, AIR 1960 SC
137 (142) : 1960 (1) SCR 890
36 . Fatima bibiUsmal Patel v. MangubenPranbhaiThakkar , 1995 Supp (3) SCC 193
37. Provincial Transport Service v. State Industrial Court, AIR 1963 SC 114 : 1963 (3) SCR 650 ;
State Of Gujarat v.VakhatsinghjiSursinghjiVaghela, AIR 1968 SC 1481 (1489) :1968 (3) SCR
692. observation to the contrary in BabhutmalRaichandOswal v.LaxmibaiR.Trate , AIR 1975
SC 1297 (1301) : (1975) 1 SCC 858 is to be read with caution.
38. Dahya Lal v. Rasul Mohammed Abdul Rahum,AIR 1964 SC 1320 (1323) :1963 (3) SCR 1 ;
Provincial Transport Service v. State Industrial Court, AIR 1963 SC 114 : 1963 (3) SCR 650 ; Cf. D.N.
Banerjee V P.R Mukherjee,1953 SC 58 ; Gangadhar Telangv.Ramachandra Ganesh Bhide, AIR 1977
SC 1222 (Para 3) : (1977) 2 SCC 437
39. Santosh Kumar v. Mool Singh Bhai ,AIR 1958 SC 321 : 1959 SCR 32
40 . Nibaran Chandra Bag v. Mahendra Nath Ghughu, AIR 1963 SC 1895 : 1963 Supp. (2) SCR
570 : Rukuranandv.State of Bihar, AIR 1971 SC 746 (748) : (1971) 3 SCC 167; Gujarat
Steel Tubes Limited v. Mazdoor Sabha, Gujarat Steel Tubes , AIR 1980 SC 1896: (1980) 2
SCC 593 : (1980) 1 LLJ 137
41 . Trimbak Gangadhar Telangv. Ramachandra Ganesh Bhide, AIR 1977 SC 1222 (1977 ) 2 SCC 437

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injustice.42

(¶50.) In Umaji Keshao Meshram v. Radhikabai,43it was noted as follows: “Under Article
226 an order, direction or writ is to issue to a person, authority or the State. In a
proceeding under that article the person, authority or State against whom the
direction, order or writ is sought is a necessary party. Under Article 227, however,
what comes up before the High Court is the order or judgment of a subordinate Court
or tribunal for the purpose of ascertaining whether in giving such judgment or order
that subordinate Court or tribunal has acted within its authority and according to
law.”
(¶51.) It is submitted to this Hon’ble Court that the issue in question uses the word “ANY” -
as to whether the High Court can take up any case from Subordinate Court under
article 227 of the Constitution of Indica, which when answered in positive would
imply that the High Court has an unlimited prerogative to do almost anything by
invoking the article 227 over the Courts and Tribunals inferior to it. This would
definitely go beyond the ambit of what was actually conferred under Article 227 of
the Constitution of Indica.
(¶52.) Hence, under the Article 227 – the power of Supervision – being an extraordinary
power, must be exercised most sparingly and with utmost caution. The High Court
cannot, on the drop of a hat, in exercise of its power of superintendence under article
227 of the constitution, interfere with the orders of Tribunals or Courts inferior to it,
nor can it, in exercise of this power, act as a Court of appeal over the orders of Court
of Tribunal subordinate to it. In cases where an alternative statutory mode of redressal
has been provided, that would also operate as a restrain on the exercise of this power
by the High Court.

The High Court of Metropolis, Indica does not have the power to take up any case
from a subordinate Court under Article 227 of the Constitution of Indica.

42
. Trimbak Gangadhar Telang v. Ramachandra Ganesh Bhide, AIR 1977 SC 1222
(1977 ) 2 SCC 437
43
.Umaji Keshao Meshramv. Radhikabai [AIR 1986 SC 1272]
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[PRAYER]

PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, the
counsel for the Petitioner humbly prays that the Hon’ble Court be pleased:

1. To declare that the present suit is not maintainable both in law and in fact,
2. To set aside the order of the Rent Control Tribunal,

And pass any order that this Hon’ble Court may deem fit in the interest of equity, justice and
good conscience.

And for this act of kindness, the counsel for the Petitioner shall be duty
bound and forever pray.

Sd/-

(Counsel for the Petitioner)

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