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2013 DIGILAW 1566 (RAJ)

Roopnarayan v. Sushila Devi

2013-09-09

GOVIND MATHUR

body2013
JUDGMENT 1. - This petition for writ is preferred to question correctness of the order dated 9.4.2013 passed by learned Additional Sessions Judge, Parbatsar in Original Civil Case No. 13/2009, Sushila Devi v. Gopal Lal Gaur , in the court of Civil Judge (Senior Division), Parbatsar, deciding the issue No. 6. 2. Factual matrix necessary to be noticed is that the petitioner preferred a suit (Original Suit No. 45/2006) for injunction and declaration that he is permanent tenant of the shop, thus, landlord Smt. Sushila Devi be restrained from dispossessing him from the premises concerned. During pendency of the suit aforesaid, Smt. Sushila Devi preferred an another suit for eviction of the petitioner (defendant No. 1) from the rented premises with assertion that she rented out the shop to Shri Gopal Lal who further sublet the same to the present petitioner. The suit for eviction is based on the grounds of bonafide necessity of the landlord and material alteration with rented premises. In the suit preferred by Smt. Sushila Devi the issue No. 6 was framed in the terms that "whether this suit is barred by provisions of Section 10 of the Code of Civil Procedure due-2- to pendency of the earlier suit No. 45/2006 before the court of Civil Judge (Senior Division), Parbatsar?" 3. Learned trial court decided the issue No. 6 first and arrived at the conclusion that in the instant matter the question involved is with regard to bonafide necessity of the plaintiff and the material alteration with the rented premises, whereas the earlier suit (45/2006) pertains to the issue about permanent tenancy of the plaintiff in that case, thus, Section 10 Code of Civil Procedure does not come into picture. 4. It is submitted by counsel for the petitioner that the court below failed to appreciate that there is identity of the issue in both the suits and whole of subject matter in both the proceedings is identical, thus, the second suit is restricted by application of Section 10, Code of Civil Procedure. 5. Per contra, as per counsel for the respondents the subject matter in both the suit is different in view of the fact that in the instant matter the question is with regard to assessment of bonafide necessity of the landlord and material alteration made with the rented premises and these issues are not under adjudication in the earlier suit. 5. Per contra, as per counsel for the respondents the subject matter in both the suit is different in view of the fact that in the instant matter the question is with regard to assessment of bonafide necessity of the landlord and material alteration made with the rented premises and these issues are not under adjudication in the earlier suit. While stating that the term "permanent tenancy unknown in rent control legislation", it is urged that even if there is anything like permanent tenancy then that too is subject to eviction on certain grounds including bonafide necessity of the landlord and material alteration made in the rented premises by the tenant. 6. Heard counsel for the parties. 7. The eventualities in which Section 10 Code of Civil Procedure, 1908 operates have been discussed by the Hon'ble Supreme Court in National Institute of Mental Health and Neuro Science v. C. Parameshwara, 2005 (3) SRJ 287 , as under:- "7. The object underlying section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of section 10 suggests that it is referable to a suit instituted in the Civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract section 10 is whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning-4- thereby, that the whole of subject matter in both the proceedings is identical." 8. In view of the provisions of Section 10 Code of Civil Procedure and the law laid down in the case of National Institute of Mental Health and Neuro Science (supra) this Court is required to examine that whether the matter in issue in both the suits is directly and substantially identical. 9. It is the position admitted that in the earlier suit the petitioner is claiming a declaration to the effect that he is a permanent tenant of Smt. Sushila Devi, therefore, he should not be dispossessed from the rented premises, whereas in the suit preferred by Smt. Sushila Devi the question requires consideration is eviction of the tenant on the grounds of bonafide need of landlord and the material alteration, if any made in the rented premises by the tenant. Suffice to mention that in earlier suit there is no question of examination of these eventualities. As such, the issues involved in both the suits are not at all substantially identical. In view of it I do not find any wrong with the order impugned that may warrant interference of this Court while exercising powers under Article 227 of the Constitution of India. 10. The writ petition, therefore, is dismissed.Petition Dismissed. *******