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Himachal Pradesh High Court · body

2014 DIGILAW 1749 (HP)

Krishna Devi v. Amar Jeet Ahuja

2014-11-26

RAJIV SHARMA

body2014
JUDGMENT : Rajiv Sharma, J. This petition is instituted against order dated 15.3.2014 rendered by learned Rent Controller, Shimla in case No. 8/2 of 2013. 2. “Key facts" necessary for the adjudication of the present petition are that respondent No. 1 has filed an eviction petition against petitioner and proforma respondents No. 2 and 3, bearing case No. 8/2 of 2013, on the grounds of personal bona fide requirement of the shop in question. Respondent has already instituted a case bearing No. 37/2 of 2008 before the learned Rent Controller (1) Shimla on the ground of subletting and personal bona fide requirement for the purposes of building and rebuilding. Petitioner has challenged the relationship of landlord-tenant. 3. Petitioner filed an application under order 14 Rules 1 and 2 read with Section 10 of the Civil Procedure Code for determining and trying the issue for staying the petition under Section 10 of the Civil Procedure Code, 1908, as a preliminary issue in case No. 8/2 of 2013 vide annexure PA. Reply was filed vide annexure PB. Application has been rejected by the learned Rent Controller on 15.3.2014. 4. I have heard the learned counsel for the parties and also gone through the order dated 15.3.2014 carefully. 5. In the instant case, case No. 37/2 of 2008 has been filed by the respondent seeking eviction of the petitioner and proforma respondents No. 2 and 3 on the grounds of subletting and personal bona fide requirement for the purposes of building and rebuilding. Subsequent case bearing No. 8/2 of 2013 has been filed on the grounds of personal bona fide requirement of the shop in question. Issues were framed by the learned Rent Controller on 23.5.2014 inter alia following issues: “3. Whether there is no relationship and tenant between the parties as alleged? OPR 5. Whether the petition is liable to be stayed under Section 10 of C.P.C. as alleged? OPR” 6. Though the question of relationship of landlord-tenant may be common, however, fact of the matter is that entire subject matter of the proceedings is not the same in the previous case and subsequent case i.e. case No. 37/2 of 2008 and 8/2 of 2013. There was no need to decide issue No. 5 as a preliminary issue or to stay proceedings. 7. There was no need to decide issue No. 5 as a preliminary issue or to stay proceedings. 7. Their Lordships of the Hon'ble Apex Court in (2013)4 SCC 333 in ASPI Jal and another vs. Khushroo Rustom Dadyburjor, have held as under: 9. Section 10 of the Code which is relevant for the purpose reads 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. From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. 10. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences vrs. C.Parameshwara, (2005) 2 SCC 256 in which it has been held as follows: “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 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 contradistinction 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 the subject-matter in both the proceedings is identical 11. The words directly and substantially in issue are used in contradistinction 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 the subject-matter in both the proceedings is identical 11. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether the matter in issue is also directly and substantially in issue in previously instituted suits. The key words in Section 10 are the matter in issue is directly and substantially in issue in the previously instituted suit. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit. 12. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what the matter in issue exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case. 8. Accordingly, there is no merit in the present petition and the same is dismissed, so also the pending applications, if any.