Ashish Dhawan vs Second Addl.Distt.Judge, Lucknow and Others

A.N. Varma, J.—The present Revision has been directed against the judgment and order dated 19.10.2005 passed by the Additional District Judge, Court No.2, Lucknow, whereby the application preferred by the revisionist under Section 10 of Code of Civil Procedure for stay of the subsequently instituted Suit has been rejected.

The opposite party No.2, Smt. Sidheshwari Devi Gupta filed a suit against the Revisionist for ejectment on the ground of arrears of rent, being S.C.C. Suit No.53 of 1999. In 1991 the opposite party No.3, Cantonment Board, Lucknow, instituted a Suit against the opposite party No.2 for permanent injunction in the Court of Civil Judge for permanent injunction. In the suit filed by the opposite party No.3, an order of injunction was passed by the trial Court on 30.8.1991 restraining the opposite party No.2 from raising any construction and letting the building out on rent.

An application was preferred by the revisionist, purporting to be under Section 10 of the Code of Civil Procedure praying therein that Suit No.53 of 1999 be stayed as the matter in issue is also directly and substantially in issue in the previously instituted Suit between the same parties. The opposite party No.1, vide judgment and order dated 19.10.2005 rejected the application of the Revisionist on the ground that the previously instituted Suit as well as subsequently instituted Suit are not between the same parties and that the matter in issue in previously instituted Suit is not substantially the same as in the subsequently instituted Suit.

The learned counsel for the Revisionist strenuously argued that the learned Court below committed a manifest illegality in rejecting the application preferred under Section 10 of the CPC inasmuch as the subject matter of property in dispute in both the suits is the same, therefore, the provision of Section 10 are attracted. In this connection he also placed reliance upon a Division Bench decision reported in AIR 1997 Delhi page 232, M/S Sarjies Aluminim Udyog v. Sudhir Batra, New Delhi.

The provision of Section 10 of the Code of Civil Procedure reads as follows:

�Section 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.�

Section 10 postulates that no Court shall proceed with the trial of any Suit in which the matter in issue is also directly or substantially issue in previously instituted Suit between the same parties or between the parties under whom they are litigating.

In order that the Section may apply (a) the matter in issue in both the suits must be substantially the same, (b) the previously instituted suit must be pending in the same Court in which the subsequent suit is brought or in a different Court in India having jurisdiction to grant the relief claimed, (c) both the suits must be between the same parties or their representatives and (d) such parties must be litigating in both the suits under the same title.

Where the above conditions are satisfied the previously instituted suit alone has to proceed and the subsequent suit is to be stayed.

Where the Court in the latter Suit has no jurisdiction to grant relief claimed in the previous proceedings, the section would not apply, meaning thereby that the Court in which the previous suit is pending must be competent to grant (a) the relief claimed in that suit, (b) the relief claimed in the subsequent suit. The object is to avoid conflicting judicial decisions by preventing the Courts of concurrent jurisdiction from simultaneously agitating upon two parallel suits in which the matter in issue is substantially the same.

In the case at hand, Suit No.254 of 1991 i.e., the previous suit, filed by opposite party No.3 i.e., the Cantonment Board where the relief for permanent injunction was prayed, is pending in the Court of Civil Judge, Lucknow whereas Suit No.53 of 1999 filed by opposite party No.2 landlady for ejectment of the revisionist on the ground of arrears of rent, is pending in the Court of II Additional District Judge, Lucknow.

The Court of Civil Judge does not have any jurisdiction to grant any relief in respect of the suit, filed by opposite party No.2 (Suit No.53 of 1999). The previously instituted suit pertains to grant of injunction whereas the subsequently instituted suit is between the landlord and tenant for a decree of ejectment on the grounds of arrears of rent. Moreover the previously instituted suit has been filed by the Cantonment Board against opposite party No.2 landlady of the revisionist. Thus, both the suit are neither between the same parties nor between the parties whom they or any of them claim, litigating under the same title. The subject matter in the two suits are not the same. Thus, the matter directly and substantially in issue in these two suits are not the same. There is no substantial identity in the two suits. The scope of enquiry in two suits being different the provisions of Section 10 of the Code of Civil Procedure is not attracted.

Another test of applicability of Section 10 of the Code of Civil Procedure is where the final decision in the previous suit would operate as res judicata in the subsequent suit. This is also not the position so far as the case at hand is concerned. Unless the decision of the suit operates as res judicata in the other suit, it cannot be said that the matter in issue is directly and substantially the same in both the suits.

I have gone through the decision relied upon by the Revisionist, referred to above. The said case is of no help insofar as the facts of the present case is concerned. The proposition laid down by Delhi High Court (supra) is in no manner different from what is contemplated under Section 10 of the Code of Civil Procedure.

Thus, there being no substantial identity in the two suits, the provisions of Section 10 of the Code of Civil Procedure are not attracted. The Court below did not commit any error or illegality in not staying the subsequent suit. The application preferred by the revisionist for stay of proceedings under Section 10 of the Code of Civil Procedure in the subsequently instituted suit, has rightly been rejected.

In view of the aforesaid, the revision lacks merit and as such is hereby dismissed.

(Revision dismissed)