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Allahabad High Court · body

2017 DIGILAW 1944 (ALL)

Gopal Ji v. Additional District Judge

2017-08-23

MAHENDRA DAYAL

body2017
JUDGMENT : Mahendra Dayal, J. The petitioner has filed this writ petition invoking jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the order dated 03.03.2008, passed by Additional District Judge, Room No. 3, Sultanpur in S.C.C. Suit No. 2 of 2001 as contained in Annexure No. 1 to the writ petition. 2. The brief facts are that the respondent No. 2 executed an agreement to sell the property in dispute on 04.06.1990, for which, a sum of Rs. 80,000/- was paid as earnest money. It was agreed that on 31.12.1995, the respondent No. 2 will execute the sale-deed after receiving the balance amount of sale consideration, but the sale-deed was not executed as agreed. The wife of the petitioner, therefore, filed a Regular Suit No. 11 of 1996 for specific performance of contract. However, the respondent No. 2 delayed the hearing of the case and in order to put pressure upon the petitioner and his wife, filed a S.C.C. Suit No. 2 of 2001 for ejectment and recovery of arrears of rent. The suit was contested by the petitioner mainly on the ground that that the agreement to sell has been executed by the respondent No. 2 and a suit for specific performance was pending in the Court. It was also submitted that the petitioner did not commit any default in payment of rent. The suit filed by the wife of the petitioner for specific performance was decreed only in respect of earnest money. Feeling aggrieved by the aforesaid judgment, the petitioner's wife preferred Civil Appeal No. 57 of 2006, which is also pending. The respondent No. 2 in order to further delay the proceedings of appeal, filed an application for amendment at the appellate stage, which was rejected against which Writ Petition No. 6140 of 2007 (MS) was filed. This Court while entertaining the aforesaid writ petition stayed further proceedings of civil appeal. Since, the respondent No. 2 was bent upon to delay the proceedings of appeal, the petitioner filed an application under section 10 of CPC with the prayer that the proceedings of S.C.C. Suit No. 2 of 2001 be stayed till the disposal of Civil Appeal No. 57 of 2006. The respondent No. 2 preferred objections against the said application, but the learned court below rejected the said application by passing the impugned order. 3. The respondent No. 2 preferred objections against the said application, but the learned court below rejected the said application by passing the impugned order. 3. The submission of the learned counsel for the petitioner is that the learned court below has committed manifest error of law in rejecting the application under section 10 CPC although the fact in issue is substantially the same in both the cases. The disputed property in both the cases is identical. Learned counsel has referred to section 10 CPC, which provides for stay of the suit. Section 10 Code of Civil Procedure is reproduced as under:- "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." 4. A perusal of the provision of section 10 of CPC makes it clear that the Court is under obligation not to 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. The provisions of section 10 CPC further makes it clear that for the applicability of section 10 CPC, it is necessary that two suits must be in respect of the same subject matter and the matter in issue must also be the same either directly or substantially. 5. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Apex Court, reported in (2005) 2 SCC Page 256 in support of his arguments. In this case, it has been held that for the applicability of section 10 CPC, the fundamental test is whether on final decision being reached in the previous suit, would operate as res judicata in a subsequent suit. It has also been held that Section 10 applies in cases where the whole of the subject-matter in both the suits is identical. 6. It has also been held that Section 10 applies in cases where the whole of the subject-matter in both the suits is identical. 6. Learned counsel for the respondent has on the other hand submitted that although the subject-matter in both the suits is identical, but the parties are different and the relief claimed in both the suits are also different. In the suit filed by the wife of the petitioner, the prayer is for a decree of specific performance of contract while in another suit, filed by the respondent No. 2, the relief sought is, for ejectment and recovery of arrears of rent. The matter in issue in both the suits, is entirely different and unless the Court finds that the matter in issue in both the suits is same, the proceedings cannot be stayed by invoking the power of section 10 CPC. Learned counsel has referred to the impugned order, in which, the learned court below has considered this aspect of the matter and has come to the conclusion that not only the cause of action in both the suits is different, but the matter in issue is also different. 7. Upon hearing learned counsel for the parties and on perusal of the record as well as the impugned order, I am of the view that the matter in issue in both the suits is entirely different and as such the proceedings of the subsequent suit cannot be stayed under section 10 CPC only on the ground that the subject matter in both the suits is same. 8. In the result, the writ petition is devoid of merit and is dismissed. 9. There will be no order as to cost.