Ramesh Chandra v. Kamla Devi — 1997 DIGILAW 249 (RAJ)

Honble SHARMA, J.–It is noteworthy that, while Sec. 11 CPC provides that no Court shall try any suit or issue etc. Section 10 CPC merely says that no Court shall proceed with he trial of any suit etc. It follows that the mere fact that one issue is common in the two suits, would not necessitate the stay of the subsequent suit. Although the words ``matter in suit cannot be held necessarily to mean the subject matter in dispute, it seems clear that they must mean the entire matter in controversy and not one of several issues in the case. Had the intention of the legislature been to widen the scope of Sec. 10 CPC so as to make it coextensive with Sec. 11 the language employed would have been identical. (2). In the light of this settled legal position I proceed to adjudicate an interes- ting question regarding the interpretation of Sec. 10 CPC arises in this revision filed by the defendant petitioner (for short the defendant) against the order dated 28.9.1996 passed by the Additional District Judge No.6 Jaipur District whereby the application u/S. 10 CPC filed by him for staying the civil suit No. 77/96 was dismissed. (3). A brief reference to the factual aspects would suffice before I deal with the pivotal question, whether the proceedings of civil suit No. 77 of 1996 are liable to be stayed, pending the decision of S.B. Civil First Appeal No. 2/1991. (4). Plaintiff non-petitioner Smt. Kamla Devi (for short the plaintiff) on 24.5.1976 instituted a suit against the defendant for possession with regard to pro- perty situated in Chowkri Gangapole Samod bearing Municipal No. 1368. Mesne profits at the rate of Rs. 100/- per month were also claimed by the plaintiff was based on a will alleged to have been executed by the husband late Shri Deoki Nandan, in her favour on 9.11.1974. The defendant assailed the genuineness and the legality of the said will and pleaded that he was validly adopted by Deoki Nandan as early as on 2.5.1995 and was continuously residing in the suit property with Deoki Nandan since then. The building on the disputed land was constructed out of the ancestral funds and he himself contributed his own earnings in construction of the building. (5). The court of Additional District Judge No.2 Jaipur City decreed the aforesaid suit vide decree and judgment dated 6.12.1990. The building on the disputed land was constructed out of the ancestral funds and he himself contributed his own earnings in construction of the building. (5). The court of Additional District Judge No.2 Jaipur City decreed the aforesaid suit vide decree and judgment dated 6.12.1990. The defendant preferred regu- lar first appeal against the decree and judgment. In the said appeal bearing No. S.B. Civil First Appeal No. 2/91, this Court on 22.2.1991 passed an interim order staying the dispossession of the defendant from the suit property, subject to his paying to the plaintiff or depositing in the trial Court the entire arrears of mesne profits and future mesne profits at the rate of Rs. 100/- per month by 15th of every succeeding month. It was observed in the said order thus : ``It is made clear that this order would not affect the rights, if any, of the respondent decree holder to claim damages/mesne profits at a higher rate from any date after the decision of the suit. (6). This court vide order dated 22.2.1991, listed S.B. Civil First Appeal No. 2/91 for hearing in due course. (7). The plaintiff on 28.1.1992 instituted another suit for recovery of mesne profits against the defendant praying for a decree of sum of Rs. 11,000/- bearing the mesne profits from 22.2.1991 to 22.1.1992 and has further prayed for a decree of sum of Rs. 1,000/- per month till the date of possession of the suit property. (8). The defendant submitted written statement challenging the maintainability of suit on the ground that until the appeal is decided, no decree as prayed for by the plaintiff could be granted. An application u/S. 10 CPC was also filed by the defendant on 15.2.1996, praying therein that the suit proceedings be stayed till the decision of aforesaid first appeal. (9). The trial Court vide order dated 28.9.1996 rejected the said application. Against this order present action for filing the revision has been resorted to. (10). It has been urged on behalf of the defendant that in as much as the contention between the parties in the present suit and in appeal No. 2/91 relates to the mesne profits claimed by the plaintiff, he is entitled to demand a stay. It cannot be disputed that the provisions of a particular case invoke the operation of that section. It cannot be disputed that the provisions of a particular case invoke the operation of that section. The Courts have no other alternative but to give effect to it and stay the suit. I have therefore to determine if the `matter in issue in the present suit is directly or substantially in issue in appeal No.2/91 which must be taken to be the continuation of a previously instituted suit. At this stage it will be convenient to state that the suit was filed by the plaintiff for possession and for mesne profits in respect of a particular period and the present suit in respect of a subsequent period. Mr. Amod Kasliwal, learned counsel contends that the question of the mesne profits in both the suits is common and this is, it is urged, the main issue in both the suits. I am unable to accept this contention. The expression ``the matter in issue as used in Sec. 10 CPC does not mean ``any matter in issue. The matter in issue in a previously instituted suit obviously refers to the entire subject matter in dispute and not to one of the issue however important it may be for the decision of suit. (11). In Velur Muunuswami vs. Darwaja Raghupathi, (1), it was observed that as the amount claimed in the latter suit was apparently for a different period from the amount claimed in the former suit, the matters in issue in both the suits were therefore not the same. Section 10 CPC therefore did not debar the trial of latter suit. (12). In Roshan Din vs. Mst. Malan Bibi, (2) it was laid down that the expression ``matter in issue in Sec. 10 CPC has reference to the entire subject matter in contro- versy between the parties and is not equivalent to ``any of the questions in issue. The section does not bar the trial of a suit for rent for a period subsequent to that included in the previously instituted suit which is pending, although the same question may be involved in both the suits. (13). In Bepin Behary Mazumdar & Ors. vs. Jogendra Chandra Ghosh & Anr.(3) it was indicated that Sec. 10 CPC does not bar the trial of a suit for rent for a period subsequent to that included in the previously instituted suit for rent, although the same question may be involved in the two suits. (13). In Bepin Behary Mazumdar & Ors. vs. Jogendra Chandra Ghosh & Anr.(3) it was indicated that Sec. 10 CPC does not bar the trial of a suit for rent for a period subsequent to that included in the previously instituted suit for rent, although the same question may be involved in the two suits. (14). In Gargi Din Misra vs. Debi Charan, (4) it was propounded that the mere fact that one issue is common in two suits could not necessitate the stay of subse- quent suit. The words ``matter in suit mean the entire matter in controversy and not one of the several issues in the case. Section 10 is limited in its scope. (15). In Gillomal vs. Sethani Ratan Kunwar, (5) this Court held that where the point relating to the rate of rent was in issue in subsequent suit as well as in the former suit, the provisions of Sec. 10 are not applicable. (16). In C.L. Tondon vs. Prem Pal Singh, (6) it was observed that valuable touch stone for determining whether the matters in issue are directly and substantially the same, is whether the decision in the prior suit will bring the principle of res judicata into operation in the subsequent suit. (17). In Vijay Kumar vs. Manohar Lal, (7) it was held that the expression `matter in issue occurring in Sec. 10 means the subject matter in dispute and takes such colour from the Explanation to Sec. 10. The mere fact that some issues are common in the two suits would not necessitate the stay of the subsequent suit. In this, view, Sec. 10 will not be applicable where suits are filed for recovery of rent for different periods although the same question may be involved in the two suits. (18). In Munni Lal vs. Sarvajeet, (8) this Court observed that `what Sec. 10 provides is the ``trial of any suit when the matter in issue in that suit is also directly and substantially in issue in a previously instituted suit between the same parties. (19). In the earlier suit the relief in respect of possession of suit property as well as mesne profits at the rate of Rs. 100/- per month, was sought. (19). In the earlier suit the relief in respect of possession of suit property as well as mesne profits at the rate of Rs. 100/- per month, was sought. This Court in Appeal No. 2/91 passed an interim order on 22.2.1991 observing that the interim order would not affect the rights of the plaintiff to claim mesne profits at a higher rate from any date after the decision of the suit. The plaintiff thereafter on 28.1.1992 instituted subsequent suit for recovery of mesne profits from 22.2.1991 to 22.1.1992 and for a further period till the date of possession of suit property at the rate of Rs. 1,000/- per month. Mere fact that one issue with regard to mesne profit is common in the former suit and in the subsequent suit, would not necessitate the stay of subsequent suit. Section 10 CPC does not bar the trial of a suit for mesne profits for a period subsequent to that included in the previously instituted suit for mesne profits, although the same question is involved in two suits. Amount claimed in the latter suit was apparently for a different period from the amount claimed in the former suit. The matters in issue in both the suits are therefore not the same. ``Matter in issue in Sec. 10 CPC has reference to the entire subject matter in contro- versy between the parties and is not equivalent to ``any of the questions in issue. (20). I find no jurisdictional error in the impugned order. The revision, therefore, fails and is dismissed without any order as to costs.