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2013 DIGILAW 1205 (AP)

Bevara Sriramulu v. Gorthi Ramakrishna Rao

2013-12-23

A.V.SESHA SAI

body2013
Judgment : 1. This Civil Revision Petition, under Article 227 of the Constitution of India, is filed assailing the order dated 13.04.2012 passed by the Rent Controller-cum-Principal Junior Civil Judge, Srikakulam, dismissing I.A.No.24 of 2012 in R.C.C.No.1 of 2011, filed by the petitioner herein under Section 10 of the Code of Civil Procedure (for short ‘C.P.C.’), seeking stay of all further proceedings in the said R.C.C. until the disposal of the appeal proceedings filed in the Court of the District Judge, Srikakulam, against the decree and judgment passed in O.S.No.435 of 2008. 2. Briefly stated, the facts and circumstances leading to filing of the present revision are as follows: The 1st respondent herein filed R.C.C.No.1 of 2011 on the file of the Rent Controller-cum-Principal Junior Civil Judge, Srikakulam, for eviction of the petitioner herein from the schedule premises. In the said R.C.C., the petitioner herein filed an interlocutory application in I.A.No.24 of 2012, under the provisions of Section 10 of C.P.C., seeking stay of all further proceedings in R.C.C.No.1 of 2011, pending disposal of the appeal on the file of the District Judge, Srikakulam, filed against the decree and judgment rendered in O.S.No.435 of 2008. In the affidavit filed in support of the said application, the petitioner herein stated that the respondents herein filed O.S.No.435 of 2008 on the file of the Principal Junior Civil Judge, Srikakulam, against him for eviction, delivery of possession and damages and that the said suit was dismissed, on 21.09.2010 and thereafter, the respondents herein filed R.C.C. by mentioning the decree and judgment passed in the said suit and also basing on the findings of the judgment rendered in the said suit. The petitioner herein further stated in the said affidavit that the respondents herein preferred appeal in A.S.No.9 of 2012 against the judgment and decree in O.S.No.435 of 2008 before the learned District Judge, Srikakulam, and in the said appeal they also filed an application in I.A.No.1797 of 2011 for condonation of delay. The petitioner herein further stated in the said affidavit that the respondents filed appeal against the judgment and decree rendered in O.S.No.435 of 2008 and that the said appeal is prior to litigation in R.C.C.No.1 of 2011 and that the issue for eviction in both the matters is directly and substantially the same. 3. The petitioner herein further stated in the said affidavit that the respondents filed appeal against the judgment and decree rendered in O.S.No.435 of 2008 and that the said appeal is prior to litigation in R.C.C.No.1 of 2011 and that the issue for eviction in both the matters is directly and substantially the same. 3. Resisting the said application in I.A.No.24 of 2011, the 1st respondent herein filed a counter, contending principally that there is no law to the effect that pending civil matter, Rent Control Case filed under the provisions of the Rent Control Act has to be stayed and both are quite independent. The 1st respondent herein further stated in the counter that the application filed under Section 10 of C.P.C. is only in the direction of further delaying the matter and that the present application is not maintainable. 4. The Rent Controller-cum-Principal Junior Civil Judge, Srikakulam, by virtue of an order dated 13.04.2012 dismissed I.A.No.24 of 2002 in R.C.C.No.1 of 2011 holding that the said application is not maintainable. Challenging the said order passed by the Rent Controller, the present revision has been filed under Article 227 of the Constitution of India, urging a number of grounds. 5. This Court on 23.11.2012, granted interim stay. Now, at the request of the learned counsel appearing on either side, this Court proposes to dispose of the present C.R.P. by way of this Order. 6. Heard Sri T.Rajasekhar Rao, learned counsel for the petitioner and Sri K.S.Gopal Krishnan, learned counsel for the respondents and perused the material available on record. 7. It is contended by the learned counsel for the petitioner that the order passed by the learned Rent Controller is opposed to the very spirit and object of the provisions of Section 10 of C.P.C. and the learned Rent Controller is not justified in dismissing the application on the ground of maintainability. It is further contended by the learned counsel that the respondents cannot chose two fora, for the same relief. In support of his contentions, the learned counsel for the petitioner places reliance on the judgments of the Hon'ble Apex Court in P.V.Shetty v. B.S.Giridhar ( AIR 1982 SC 83 ), Balbir Singh Wasu v. Lakhbir Singh (2005) 12 SCC 503 ) and judgments of this Court in K.V.Uma Maheswara Rao v. Gandam Sujatha ( 1996(1) ALT 558 ) and M.Nagender Rao v. B.N.Lakshmiah ( 1996(2) ALT 489 ). It is eventually prayed by the learned counsel for the petitioner to allow the revision. 8. Per contra, it is contended by the learned counsel for the respondents herein that the learned Rent Controller is perfectly justified in dismissing the application filed by the petitioner herein and the petitioner has failed in making out a case, warranting any interference or indulgence of this Court under Article 227 of the Constitution of India. In support of his case, the learned counsel places reliance on the judgment of the Hon'ble Apex Court in Shriram Scientific and Industrial Research Foundation v. V.K.Dhingra (2009) 17 SCC 759 ) and the judgment of this Court in Binodlal Sagarmal v. Prem Prakash Gupta ( 2003 (5) ALD 222 ). It eventually prayed by the learned counsel for the respondents to dismiss the revision. 9. Now the points, which arise for consideration of this Court are: “Whether the application filed by the petitioner herein under Section 10 of C.P.C. is maintainable and whether the order passed by the Court below requires any correction in exercise of powers conferred under Article 227 of the Constitution of India.” 10. In the instant case, the respondents herein filed O.S.No.435 of 2008 for eviction and delivery of possession and the said suit was dismissed by the Rent Controller-cum-Principal Junior Civil Judge, Srikakulam, by virtue of judgment and decree dated 21.09.2010 on the ground of maintainability. After dismissal of the said suit, the respondents herein filed the present R.C.C.No.1 of 2011 in the month of December, 2010 and in the said R.C.C. the petitioner herein filed a counter, stating that the respondents have to agitate for the relief of eviction in a civil suit by filing appeal against the judgment and decree in O.S.No.435 of 2008. The respondents herein filed A.S.No.9 of 2012 on the file of the District Judge, Srikakulam, and the said appeal is pending. 11. The case of the petitioner is that inorder to avoid the conflict of judgments, proceedings in R.C.C.No.1 of 2011 are liable to be stayed, pending the appeal before the learned District Judge, Srikakulam. The relevant provision of law, which is germane for the purpose of resolving the controversy in the present revision is Section 10 of C.P.C. which stipulates as follows: “10. Stay of suit. The relevant provision of law, which is germane for the purpose of resolving the controversy in the present revision is Section 10 of C.P.C. which stipulates as follows: “10. Stay of suit. No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation. The pendency of a suit in a foreign court does not preclude the Courts in India from trying a suit founded on the same cause of action” 12. A reading of the said provision of law clearly and manifestly indicates that the contingency under the said provision of law arises only in a situation, where two suits are pending for the same relief. In the instant case, R.C.C.No.1 of 2011, by any stretch of imagination, cannot be said a suit. In P.V.Shetty v. B.S.Giridhar(supra), the Hon'ble Supreme Court dealt with the petition under the Rent Control Act filed for fixation of fair rent by one party and a suit filed by another party for eviction. The very basis for the said suit in the said case was the quantum of rent as such the Hon’ble Supreme Court stayed it. In K.V.Uma Maheswara Rao v. Gandam Sujatha(supra), this Court stayed subsequent O.P. under the Hindu Marriage Act to avoid conflict of judgments. In Nirmala Devi v. Arun Kumar Gupta (2005) 12 SCC 505), the Hon'ble Supreme Court taking into consideration the facts of the said case, directed hearing of cases together. 13. In Shriram Scientific and Industrial Research Foundation v. V.K.Dhingra, the Hon'ble’ble Apex Court while dealing with the provisions of Delhi Rent Control Act, 1958, categorically held as follows: “4. The respondent filed an application under Section 10 read with Order 7 Rule 11 of the Code of Civil Procedure for staying the proceedings of the suit till the disposal of Eviction Petition No.E-42 of 1993 pending before the Court of the Additional Rent Controller, Delhi. 5. The respondent filed an application under Section 10 read with Order 7 Rule 11 of the Code of Civil Procedure for staying the proceedings of the suit till the disposal of Eviction Petition No.E-42 of 1993 pending before the Court of the Additional Rent Controller, Delhi. 5. The trial court dismissed the application, but on a petition filed under Section 227 of the Constitution, the High Court reversed the order of the trial court and stayed the proceedings of the suit till the disposal of the eviction petition. 6. Having heard learned counsel for the parties and perused the record, we are of the view that, in the facts and circumstances of the case, the High Court should not have stayed the proceedings of the present suit. 7. Accordingly, the civil appeal is allowed, the impugned order is set aside and Suit No.131 of 2006 is restored to its original file. The trial court shall now decide the suit in accordance with law.” 14. In M.Nagender Rao v. B.N.Lakshmiah, this Court while dealing with the application under Order VI Rule 17 C.P.C. dealt with the aspect of applicability of the provisions of C.P.C. 15. In Binodlal Sagarmal v. Prem Prakash Gupta, this Court by placing reliance on the judgment of the Supreme Court repelled the similar contention with regard to applicability of Section 10 C.P.C. In Gollu Bhavani Sankar vs Bhogavalli Rajeswara Rao ( 1999 (6) ALD 714 ), this Court while referring to the judgments of the Hon'ble Supreme Court in P.V.Shetty v. B.S.Giridhar and the judgment of this Court in Amrutlal v. the Principal Rent Controller, Hyderabad ( 1978(2) ALT 102 ), categorically held that the application under Section 10 of C.P.C. cannot be maintainable before the Rent Controller. 16. 16. The learned Rent Controller-cum-Principal Junior Civil Judge, Srikakulam, after meticulously considering the provisions of Section 10 of C.P.C. and principles laid down in the earlier judgments including judgments of P.V.Shetty v. B.S.Giridhar, dismissed the application filed by the petitioner herein under Section 10 of C.P.C. It is a well settled proposition of law as laid down by the Hon'ble Supreme Court in Estralla Rubber v. Dass Estate (p) Ltd., ( 2001 (8) SCC 97 ) Ouseph Mathai v. M. Abdul Khadir ( 2002 (1) SCC 319 ) and Surya Dev Rai v. Ram Chander Rai ( 2003 (6) SCC 675 ) that unless the orders suffer from patent infirmities and perversities, the provisions under Article 227 of the Constitution of India cannot be pressed into service. 17. For the aforesaid reasons and having regard to the principles and parameters laid down by the Hon'ble Supreme Court and taking into consideration the facts and circumstances of the present case, this Court is of the considered opinion that there are no merits in the present revision. 18. Accordingly, the Civil Revision Petition is dismissed. No order as to costs.19. Miscellaneous petitions if any, pending in this Civil Revision Petition shall stand closed.