Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 1041 (MP)

Kailash Raikwar v. Omprakash

2013-09-02

Sujoy Paul

body2013
ORDER 1. This petition filed under Article 227 of the Constitution challenges the order dated 18.10.2012, passed by First Additional Civil Judge Class-2, Gwalior in Civil Suit No. 25A/2010. By this order, the application preferred by the petitioner/defendant under section 10 read with section 151 CPC is rejected. 2. Facts of the case : The respondent No.1/plaintiff instituted a civil suit for eviction and arrears of rent pleading himself to be the owner on the basis of judgment and decree passed by the court below in earlier round of litigation between the same parties. Copy of the plaint is filed as Annexure P-2. The petitioner/defendant entered appearance in the said case and filed his written statement. The allegations of plaint were denied. It is contended that in respect of judgment and decree passed in favour of respondent No.1 in earlier round of litigation, a Second Appeal No. 811/2007 is pending consideration before the High Court. The grounds under section 12(1)(a),(c) and (f) of the MP Accommodation Control Act, 1961 (hereinafter called as “1961 Act”) were also denied. The Court below framed seven issues and proceeded with the trial. On 18.9.2012 the petitioner/defendant filed an application under section 10 read with section 151 CPC, stating that the plaintiff has claimed ownership on the basis of judgment and decree dated 23.1.2006 passed in Civil Suit No. 175A/2004 and so also on the basis of judgment and decree dated 28.7.2007 passed in the first appeal. It is contended that since second appeal against the said judgment is still pending consideration, the ownership of the plaintiff/respondent No. 1 is still under judicial scrutiny and doubt. The present civil suit must be stayed pending final disposal of the second appeal aforesaid. The plaintiff/respondent contended that section 10 CPC has no application in the facts and circumstances of the case. Reply in this regard is filed on 21.9.2012 (Annexure P/5) stating that the earlier suit was for declaration of ownership and title whereas the present suit is regarding relationship of landlord and tenant. Thus, the points involved are different. The Court below rejected the application of the petitioner preferred under section 10 of CPC. 3. I have heard learned counsel for the parties and perused the record. FINDINGS : 4. Thus, the points involved are different. The Court below rejected the application of the petitioner preferred under section 10 of CPC. 3. I have heard learned counsel for the parties and perused the record. FINDINGS : 4. On the basis of aforesaid factual matrix and rival contentions of the parties, following questions emerge:- (i) Whether the matter in issue in the present suit is directly and substantially in issue in the previously instituted suit between the same parties and whether section 10 CPC will apply ? (ii) Whether section 10 CPC can be pressed into service in the present case where second appeal is pending and first suit has already been decided ? 5. The Court below has rejected the application preferred under section 10 CPC on the ground that the written statement was filed on 23.9.2010, issues were framed on 11.10.2010, plaintiff’s evidence was closed on 6.7.2012 and defendant witness Kailash deposed his statement on 3.9.2012. At this stage, the application aforesaid is filed with a view to delay the proceedings. In addition, the finding is that the earlier suit was regarding a declaration of ownership and claiming title whereas the second suit is with regard to eviction and recovery of rent and, hence, section 10 has no application. AIR 2010 MP 16 (Rajesh Singh v. Manoj Kumar) and AIR 2005 SC 242 (National Institute of Mental Health and Neuro Sciences v. C. Parameshwara) are relied upon by the learned Court below. 6. In the considered opinion of this Court, the plaintiff/respondent filed the suit (Annexure P/2) under section 12(1)(e) and (f) of 1961 Act. The judgments relied upon by the trial Court are not applicable in the present case because in the said matter the eviction was prayed for under section 12(1)(c) and (n) of 1961 Act. Thus, the plaintiff was not required to prove in that case that he is owner of the property. In the present case, admittedly the plaintiff/respondent No.1 has claimed that he is owner of the property (para 2 of plaint). Division Bench of this Court in Rajesh Singh (supra) opined that in a suit for ejectment which is not filed under section 12(1)(e) and (f) of 1961 Act, the question of title is not directly and substantially in issue but is incidental and collateral and, therefore, section 10 CPC will not be attracted. Division Bench of this Court in Rajesh Singh (supra) opined that in a suit for ejectment which is not filed under section 12(1)(e) and (f) of 1961 Act, the question of title is not directly and substantially in issue but is incidental and collateral and, therefore, section 10 CPC will not be attracted. The Court below, in my opinion, has mechanically applied these judgments in the present case wherein the ejectment is prayed based on section 12(1)(e) and (f) of 1961 Act. Thus, the said judgments have no application. The key words in section 10 CPC are “the matter in issue is directly and substantially in issue” in previously instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally and collaterally in issue”. Section 10 will apply only if there is identity of matter in issue in both the suits. The apex Court in its recent judgment reported in (2013) 4 SCC 333 (ASPI Jal and another v. Khushroo Rustom Dadyburjor) opined that the test for applicability of section 10 is whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit. When the matter in controversy is the same, it may be immaterial what further relief is claimed in the subsequent suit. 7. The petitioner/defendant in the first suit, has prayed for ownership and title of the same property. second appeal of the said matter is pending before this Court. If petitioner succeeds in the second appeal, needless to mention that he will be declared as owner and title holder of the property in question. The said finding will operate as res judicata between the same parties. In that event, the petitioner cannot be treated as tenant nor the respondent/plaintiff can be treated as owner of the property. Thus, the judgment of second appeal/first suit will operate as res judicata on this aspect. Thus, in my opinion, the test laid down by the apex Court in the said judgment is satisfied and section 10 CPC has full application in the facts and circumstances of this matter. The court below has erred in rejection section 10 application on the ground of delay. Thus, in my opinion, the test laid down by the apex Court in the said judgment is satisfied and section 10 CPC has full application in the facts and circumstances of this matter. The court below has erred in rejection section 10 application on the ground of delay. The basic purpose of insertion of section 10 CPC is to ensure that there is uniformity in the judgments and the courts should not take different view on the same matter in issue. In AIR 1979 Punjab and Haryana 39 (Mana v. Dalel), the High Court opined as under:- “The property in dispute is the same in both the suits and so are the parties. It cannot be disputed that the result of the Regular Second Appeal would determine as to whether the petitioner is really entitled to the relief of possession and it was precisely for this reason that the trial Court thought it fit to stay the proceedings in the suit.” 8. Considering the aforesaid, in my opinion, the court below has erred in not invoking section 10 of CPC and further erred in rejecting the said application. 9. So far second question aforesaid is concerned, it is trite in law that the appeal is extension of suit. In AIR 1990 ori. 127 (Smt. Ambika Sahu v. Smt. Sumitra Sahu), the High Court opined that an appeal being continuation of the suit, pendency of second appeal would mean that the previous suit is pending (para 3). 10. The aforesaid analysis makes it clear that section 10 CPC can be pressed into service when an appeal is pending with regard to a previously instituted suit. It is also clear that the Court below has rejected the application on incorrect and impermissible grounds. 11. Resultantly, the impugned order is set aside. The application preferred under section 10 CPC of the petitioner (Annexure P/4) is allowed. The Court below is directed to act accordingly. Petition is allowed. No costs.