Research › Search › Judgment

Rajasthan High Court · body

2014 DIGILAW 1649 (RAJ)

Keshav Dev v. Ashok Kumar

2014-10-10

R.S.CHAUHAN

body2014
JUDGMENT 1. - The petitioner, Keshav Dev, is aggrieved by the order dated 19.02.2014 passed by the Addl. Civil Judge (Sr.Div.) No.1 Bari, District Dholpur whereby the learned Magistrate has allowed an application filed by the respondent under Section 10 CPC, and has stayed the proceedings in the Civil Suit No.12/2011 till the disposal of the appeal in previous Civil Suit No.9/2008. 2. The brief facts of the case are that on 1.3.1986 the petitioner had let out his shop to the respondent. Initially in the year 2008, he filed a civil suit for eviction of the respondent. He had claimed that he had served a registered notice under Section 106 of the Transfer of Property Act on the respondent. However, the said suit was dismissed by judgment and decree dated 7.4.2011, inter alia, on the ground that the notice was not duly served on the respondent. Therefore, on 27.06.2011, the petitioner issued a fresh notice to the respondent under Section 106 of the Act. On the basis of fresh notice, he instituted a fresh suit (hereinafter referred to as "the second civil suit") for evicting the respondent from the shop in dispute. Meanwhile, although no decree was passed against the respondent, but as he was aggrieved by certain findings given by the learned trial court in its judgment and decree 7.4.2011 with regard to rental amount, he filed an appeal before the District Judge, Dholpur. 3. The respondent also filed his written statement in the second suit filed by the petitioner and denied the averments made in the plaint. He also filed an application under Section 10 CPC wherein he claimed that the issues in the second suit and in the appeal were identical. Therefore the proceedings in the second suit should be stayed till the appeal is decided by the learned District Judge. The petitioner filed his reply to the said application. However, by order dated 19.2.2014, the learned Magistrate allowed the application under Section 10 CPC, as mentioned above. Hence, this petition before this court. 4. Mr. Raj Kamal Gaur, the learned counsel for the petitioner, has contended that the learned Magistrate has misapplied Section 10 CPC. He has failed to understand the scope and ambit of Section 10 CPC. Relying on the case of Aspi Jal and Anr. Hence, this petition before this court. 4. Mr. Raj Kamal Gaur, the learned counsel for the petitioner, has contended that the learned Magistrate has misapplied Section 10 CPC. He has failed to understand the scope and ambit of Section 10 CPC. Relying on the case of Aspi Jal and Anr. v. Khushroo Rustom Dadyburjor [2013(1) WLC (SC) Civil 105 ], the learned counsel has contended that for application of Section 10 of the Code, the entire subject matter of the two suits must be the same. However, in the present case, the controversy is not the same, between the second suit filed by the petitioner, and the appeal filed by the respondent. Moreover, although common issues may exist between the two proceedings, but mere existence of common issues would not bring the case under the ambit of Section 10 CPC. According to the learned counsel, the second suit is with regard to eviction of the respondent after service of notice under Section 106 of the Act, whereas the issue pending before the first appellate court is with regard to the actual rental amount. Thus, the issues are clearly distinguishable. Hence, the impugned order deserves to be set aside. 5. On the other hand, Mr. Abhi Goyal, the learned counsel for the respondent, has contended that one of the issues involved in the second suit would be with regard to the actual rental amount. The said issue cannot be decided till the said issue is settled by the first appellate court. Therefore, the learned Magistrate was certainly justified in staying the proceedings in the second suit during pendency of the appeal filed by the respondent. Therefore, the learned counsel has supported the impugned order. 6. Heard the learned counsel for the parties and perused the impugned order. 7. Section 10 CPC is as under:- 10. Therefore, the learned Magistrate was certainly justified in staying the proceedings in the second suit during pendency of the appeal filed by the respondent. Therefore, the learned counsel has supported the impugned order. 6. Heard the learned counsel for the parties and perused the impugned order. 7. Section 10 CPC is as under:- 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. 8. The relevant words of the said provision are that "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". In the present case, the issue involved in the second suit is with regard to eviction of the respondent. Although one of the issues may be with regard to the actual rental amount, but even then the issue directly and substantially involved is that of eviction. In the case of Aspi Jal and Anr. (supra), the Hon'ble Supreme Court has observed that the provisions of Section 10 CPC would not apply where few of the matters in issue are common, but would apply only when the entire subject matter in controversy is the same. However, in the present case, the entire controversy is not the same. But merely an issue with regard to the rental amount may be common between the two proceedings. Therefore, clearly Section 10 CPC cannot be made applicable to the present case. 9. As far as the contention raised by Mr. Abhi Goyal is concerned, in case his argument were to be accepted it would certainly enlarge the scope and ambit of Section 10 CPC. Therefore, clearly Section 10 CPC cannot be made applicable to the present case. 9. As far as the contention raised by Mr. Abhi Goyal is concerned, in case his argument were to be accepted it would certainly enlarge the scope and ambit of Section 10 CPC. For, his argument is that if there are common issues in the two suits then the second suit should be stayed. However, that is not the scope and ambit of Section 10 CPC as delineated by the Hon'ble Supreme Court in the case of Aspi Jal and Anr. (supra). Hence, his contention is unacceptable. 10. For the reasons stated above, this petition is, hereby, allowed. The impugned order dated 19.2.2014 is, hereby, quashed and set aside. The learned trial court to proceed further in Civil Suit No.12/2011. The stay application also stands disposed of. Both the parties are directed to appear before the learned trial court. The Deputy Registrar (Judicial) is directed to send a copy of this judgment to the concerned court for its information.Petition allowed. *******