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2013 DIGILAW 379 (RAJ)

Om Prakash Khadaria v. Navratan Mal

2013-02-13

GOPAL KRISHAN VYAS

body2013
Hon'ble VYAS, J.—In this writ petition filed under Article 227 of the Constitution of India, petitioner plaintiff is challenging the validity of impugned order dated 21.7.2012 (Annex. 6) passed by Civil Judge (J.D.) Nohar in Civil Original Suit No. 75/2011 and prayed that while quashing the above order, the application filed by the respondent No. 1 under Section 10 of CPC may kindly be dismissed and trial Court may be directed to proceed with the suit expeditiously. 2. As per facts of the case, a suit for eviction was filed in the year 1996 by the petitioner plaintiff on the ground of material alteration in the court of Civil Judge (J.D.), Nohar under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 [hereinafter referred to as `the Act of 1950'] and the suit was dismissed by Civil Judge (J.D.) Nohar. Against that judgment and decree, an appeal was preferred by the petitioner. The Additional District Judge Nohar allowed the appeal filed by the petitioner plaintiff and decree for eviction was passed in favour of the petitioner on the ground of material alteration. 3. The respondent defendant preferred second appeal before this Court against the judgment dated 23.2.1999 passed by the Additional District Judge, Nohar in appeal filed by the petitioner. The said second appeal was registered being S.B. Civil Second Appeal filed by the petitioner. The said second appeal was registered being S.B. Civil Second Appeal No. 104/99 which is said to be pending before this Court. 4. In the second appeal filed by the respondent defendant, stay is operating upon execution of the decree passed by the appellate court. 5. The Act of 1950 was repealed on 1.4.2003 and new Act known as Rajasthan Rent Control Act, 2001 came into force. Thereafter on 15.3.2011 a notice under Section 106 of Transfer of Property Act was served upon the respondent No. 1 by the petitioner plaintiff and his tenancy was terminated. 6. After termination of tenancy, the petitioner plaintiff filed a civil original suit No. 75/2011 for eviction in the court of Civil Judge (J.D.) Nohar under the provisions of Transfer of Property Act, 1882. 7. 6. After termination of tenancy, the petitioner plaintiff filed a civil original suit No. 75/2011 for eviction in the court of Civil Judge (J.D.) Nohar under the provisions of Transfer of Property Act, 1882. 7. The respondent defendant filed an application under Section 10 of CPC before the trial court in the suit with the prayer that earlier suit filed by the petitioner plaintiff for eviction and this suit is also filed for eviction in both the suit parties are the same, therefore, the proceedings of subsequent suit may be stayed till final decision of second appeal pending in this Court. The trial court passed an on 21.7.2012 whereby, the application filed under Section 10 of CPC by respondent No. 1 was allowed and Civil Judge (J.D.) Nohar stay ed the proceedings of civil suit No. 75/2011 till disposal of the second appeal by this Court. 8. Learned counsel for the petitioner vehemently argued that cause of action in both thee suits are different. Earlier suit was filed under the provisions of Act of 1950 on the ground of material alteration whereas, after repealing of said Act, petitioner gave notice under Section 106 of Transfer of Property Act and terminated the tenancy thereafter, filed civil suit for eviction against thee respondent defendant, as such cause of action in both the proceedings are entirely different, therefore, trial court ought to have considered the above aspect of the matter at the time of deciding application under Section 10 of CPC. 9. Learned counsel for the petitioner submits that the present suit for eviction has been filed after service of notice under Section 106 of Transfer of Property Act for terminating the tenancy and earlier suit was filed under the Act of 1950 on the ground of material alteration, therefore, in view of judgment rendered by Hon'ble Supreme Court reported in AIR 2005 SC 242 `National Institution of Mental Health and Neuro Sciences vs. C. parameshwara', the subsequent suit is maintainable and proceedings of that suit cannot be stayed because cause of action and grounds in both the suits are entirely different. 10. Simultaneously, learned counsel for the petition invited attention of this towards judgment rendered by this in case of Chetna Dadhich Anr. vs. Mehrunnisa & Ors. 10. Simultaneously, learned counsel for the petition invited attention of this towards judgment rendered by this in case of Chetna Dadhich Anr. vs. Mehrunnisa & Ors. reported in WLC 2007(6) Page 633 = 2008(1) RLW (Raj.) 127 in which it has been held that fresh petition on new cause of action under the Act of 2001 is not barred and land lord is not required to obtain permission of the court for filing such fresh petition, therefore, the order impugned may be quashed. 11. Per contra, learned counsel for the respondents submits that no error has been committed by the trial court in passing the impugned order dated 21.7.2012 whereby, application filed under Section 10 of CPC by the petitioner was allowed on the ground that earlier suit was preferred under the old Act on the ground of material alteration and second appeal is pending before this Court and for the same cause of action, the plaintiff has preferred subsequent suit which is not permissible under the law. According to the learned counsel for the respondent defendant if any subsequent ground arises in favour of landlord plaintiff then obviously, he was to file an application under Order 6 Rule 17 of CPC in appeal for incorporating his grounds for eviction but instead of taking the said recourse of law, the subsequent suit has been filed, which is totally illegal. 12. Learned counsel for the respondent defendant further argued that subsequent suit is barred by principle of res judicata as per Order 2 Rule 2 of CPC because for same cause of action, an eviction suit has been filed. It is also argued that earlier the suit was filed for material alteration as per ground available under Section 13 of the Act of 1950 and at that time the ground of material alteration and bonafide necessity was taken and in the present suit also, the plaintiff landlord took ground of bonafide necessity, therefore, the subsequent suit on the ground that plaintiff was terminated the tenancy while giving notice under Section 106 of CPC is not permissible under the law. The suit is barred by principle of res judicata, therefore, no error has been committed by the trial court. 13. The suit is barred by principle of res judicata, therefore, no error has been committed by the trial court. 13. Learned counsel for the respondent defendant further argued that as per Sec. 32(iii)(a) & (c) of the Rajasthan Rent Control Act, 2001, the petitioner plaintiff was required to withdraw the suit and to take permission to file fresh suit under the Act of 2001 but he has failed to comply with Sec. 32, therefore, there is no error in the order impugned. In support of his contention, learned counsel for the respondent invited my attention towards judgments reported in AIR 1990 Rajasthan 57 = 1989(2) RLW 99 `Durga Prasad vs. Radhey Shyam & Ors' Para 6; AIR 1971 Calcutta 221 Chhotabhai Jethabhai Patel & Co. vs. The Union of India' Para 5 & 8 and submits that petitioner is not entitled for any relief and the order passed by the trial court is perfectly in consonance with law, therefore, the writ petition may be dismissed. 14. I have heard learned counsel for the parties and have perused the entire record of the case so also impugned order passed by the trial court dated 21.7.2012. 14. I have heard learned counsel for the parties and have perused the entire record of the case so also impugned order passed by the trial court dated 21.7.2012. Admittedly, the earlier suit was filed under the Act of 1950 on the ground of eviction enumerated under Section 13 of the Act of 1950 in which it is specifically provided that notwithstanding anything contained in any law or a contract, no court shall pass any decree or make any order in favour of the landlord, whether in execution of a decree or otherwise evicting the tenant so long as he is ready and willing to pay rent thereof to the full extent allowable by the Act unless it is specified, meaning thereby in the old Act, there is duty cast upon the Court not to pass any decree unless the parties satisfy the Court the grounds enumerated in Section 13 of the Act whereas, after repealing the said Act, the petitioner plaintiff terminated the tenancy as per Section 106 of the Transfer Property Act, 1882 because this ground is available to him after repealing the old Act and the trial court in the suit filed after terminating the tenancy, is required to see validity of termination of tenancy not to record the satisfaction as provided in Section 13 of the Act of 1950, therefore/obviously both the suit have been filed for separate cause of action but trial court failed to consider this aspect of the matter and straightaway allowed the application filed under Section 10 of the CPC. 15. Hon'ble Supreme Court in the case of National Institute of Mental Health and Neuro Sciences (Supra) has made following adjudication in para 8 of the judgment:- "8. 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 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." Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical." 16. Likewise, in the judgment rendered by co-ordinate Bench of this Court in the case of Chetna Dadhich (supra), this Court has held that fresh petition on new cause of action under the Act of 2001 is not barred and landlord not required to obtain permission of Court for filing fresh petition. The relevant Para 6 of the judgment is reproduced hereinbelow:- "6. Right has therefore been conferred on the plaintiff/appellant to continue the proceedings under the old Act for which Clause (c) of Sub-section (3) of Section 32 provides that all prosecutions Instituted under the provisions of the repealed Act shall be effective and disposed of in accordance with such repealed law, including the right of appeal which has been provided in Clause (b) providing that "the provision for appeal under the repealed Act shall continue in force in respect of applications, suits and proceedings disposed of thereunder". If however the plaintiff does not decide to withdraw the suit or the appeal in case the suit or appeal is pending at the time of commencement of Act of 2001, it would be continued and decided in accordance with old law. If however the plaintiff does not decide to withdraw the suit or the appeal in case the suit or appeal is pending at the time of commencement of Act of 2001, it would be continued and decided in accordance with old law. Such non withdrawal of suit or appeal however does not debar instituting a fresh proceeding by filing fresh petition under any of the provisions of the Act of 2001 provided it is based on a fresh cause of action, though nature of ground for ejectment may even be; same." 17. I have perused the judgments cited by learned counsel for the respondent also on the ground of res judicata. In my opinion, those judgments are not relevant for the purpose of deciding the controversy raised in this writ petition, therefore, the judgments cited by learned counsel for the respondent plaintiff are not applicable for deciding the present case. 18. In view of above, while following the judgment rendered by Hon'ble Supreme Court in the case of National Institute of Mental Health and Neuro Sciences (Supra), this writ petition is allowed for the reason that subsequent suit is permissible under the law, if cause of action and grounds are entirely different than the earlier suit. Consequently, the impugned order dated 21.7.2012 is hereby quashed and set aside and trial court is directed to proceed in the suit and decide the same with one year.