Gian Chand vs Bala Sundari and Others

Dharam Chand Chaudhary, J.—This judgment shall dispose of both appeals between the same parties and the subject matter of dispute is also similar.

While this appeal is directed against the judgment and decree dated 17.5.2003, passed by learned District Judge, Solan, in Civil Appeal No. 29 of 2001, decreeing thereby the suit filed by the respondent, hereinafter referred to as the plaintiff, for possession of the suit premises, shown in site plan Ext. PB in red colour by letters ''ABCDEFGH'' on the ground floor and ''ABCDEF'' on the 1st floor, constructed over the land bearing Khasra No. 91, Khatauni No. 226/326, situated at Shilly Road, Solan, the connected appeal RSA No. 490/2006 against the judgment and decree dated 25.9.2006, passed by learned District Judge, Solan, in Civil Appeal No. 33-S/13 of 2006, affirming thereby the judgment and decree dated 19.4.2006 passed by learned trial Court in Civil Case No. 148/1 of 2004/2000, whereby suit for recovery of Rs. 1,000,000/- on account of wrongful use and occupation of the same property was dismissed.

The subject matter of dispute in both appeals is suit premises situated in the building Municipal No. 114, constructed over the land bearing Khasra No. 91 at Shilly Road, Solan, H.P. The plaintiffs are the owners of the same. The defendant residing at Shimla decided to shift to Solan in the year 1975 on account of his poor financial condition with a view to establish his business at Solan. He approached his mother Smt. Prasanni to persuade the plaintiffs to allow him to occupy a portion in the aforesaid building so that he could arrange for his livelihood. The request so made by him was acceded to by the plaintiffs and first floor of the building was given to him as a licensee subject to the condition that they may revoke the licence at any time or the same would stand revoked automatically on the completion of his own building at Solan.

The defendant established his business at Solan. He purchased a plot in the year 1982 in the name of his wife. He raised construction of a house thereon. He sold his flour mill which was installed in the premises in question and started scooter repairs in the year 1988. On 13.12.1990, he shifted to the building he constructed at Solan. On this the defendant was requested by the plaintiffs to vacate their premises, however, he failed to do so immediately and rather assured them to vacate the same within two years. When Shri Dayal Prasad husband of plaintiff No. 1 asked the defendant to vacate the premises in question on 31.8.1992, he assaulted him. A report was lodged against him in Police Station, Solan. Instead of handing over the vacant possession of the premises in question, the defendant claimed that the same was in his possession in the capacity of tenant. According to the plaintiffs since the defendant was never inducted as tenant in the premises in question and as he failed to vacate the same despite repeated requests and even on the intervention of the near relations, therefore, they served him with notice Ext. PW 1/C. He, however, failed to vacate the same despite the service of notice also, hence the suit for a direction mandatory in nature to the defendant to hand over the vacant possession of the premises in question to the plaintiffs

The defendant No. 1 on entering appearance has contested the suit. He came forward with the version that the suit property was purchased in the name of the plaintiffs out of the joint Hindu family funds and he was also a member of the joint family. His brothers Girdhari Lal and Dayal Prashad started treating him like a servant and it is on account of his strained relations with them, he shifted to Shimla in the year 1966 and got a job in Shimla. However, it is with the intervention of the near relations, he returned to Solan in the year 1976 and hired the premises in question from the plaintiffs at monthly rent of Rs. 90/- to carry on his business. He continued to pay the rent regularly to the plaintiffs, however, they did not issue any receipt to him. He started the business of floor mill and scooter repairs. The amount he paid by way of rent to the plaintiffs used to be reflected in the account books of business.

As per his further version, the plaintiffs refused to receive the rent w.e.f. March, 1992 and to the contrary insisted upon him to vacate the premises in question. They even manipulated the registration of a criminal case against him voluntarily on 22.3.1992. It is denied that he has constructed any building at Solan. The building constructed, however, belongs to his wife. Therefore, there being no building of his own at Solan, he cannot be forced to vacate the premises in question. In a nutshell, the defendant has denied his possession as a licensee, however, in the capacity of a tenant.

In replication, the plaintiffs have denied the contents of preliminary objections being wrong and on merits reiterated their entire case as set out in the plaint.

On such pleadings of the parties, following issues were framed:

Whether the plaintiffs are entitled for the decree of mandatory injunction, as prayed for? OPP.

Relief."

Learned trial Court after holding full trial has dismissed the suit. Learned lower appellate Court on reappraisal of the evidence available on record has, however, reversed the judgment and decree passed by learned trial Court and decreed the suit directing thereby the defendant to hand over the vacant possession of the premises as shown in site plan Ext. PB. It is, therefore, the defendant who is in 2nd appeal before this Court.

The legality and validity of the impugned judgment and decree has been assailed on the grounds, inter alia, that learned lower appellate Court has reversed the well reasoned judgment passed by the trial Court without appreciation of the evidence in its right perspective. Learned lower appellate Court has allegedly drawn adverse inference against the defendant. In view of the suit premises is situated within the limit of Municipal Committee Solan, the presumption of tenancy created in favour of the defendant ought to have been drawn. Learned lower appellate Court allegedly ignored the affidavit Ext. DX of DW Raj Kumar erroneously. The defendant having produced overwhelming evidence to prove his tenancy over the suit premises, the same has been erroneously ignored without there being any evidence in rebuttal produced by the plaintiff. The entries in the revenue record Exts. DW A/1 to Ext. DW A/4 have been misread and misconstrued. Merely that names of tenants not find mention in the revenue record should have not been taken to conclude that the defendant was not inducted as tenant by the plaintiffs. Certificate Ext. DW 5/A issued by Municipal Council, Solan was also erroneously ignored. The distinction between the lease and licence has also not been appreciated vis-�-vis the law laid down in various judicial pronouncements.

This appeal has been admitted on the following substantial questions of law:

Whether the conclusion of the first appellate court that the tenancy was created in favour of the defendant by the plaintiffs is dehors the evidence on record?

Whether the suit for the purpose of court fee has been valued by the plaintiffs in disregard to the law laid down by this Court?

Now if coming to the connected appeal, the same has arisen from the judgment and decree passed by both Courts below, whereby the suit for recovery of damages to the tune of Rs. 1,00,000/-, on account of use and occupation of the premises in dispute wrongfully during the period from 1.4.1997 to 31.3.2000 and thereafter for mesne profits till the delivery of the possession thereof, together with interest @ 12% per annum has been dismissed, on the grounds that in view of the pendency of the regular second appeal (RSA No. 328/2003) in this Court and this Court having stayed the execution of the decree for possession of the premises in question passed in favour of the plaintiffs by learned lower appellate Court, the plaintiffs cannot claim any amount by way of damages. The plea that in view of the pendency of appeal, RSA No. 328/2003 in this Court the suit may be stayed under Section 10 CPC has also been rejected, on the ground that it was never agitated by either party at initial stage of the suit. Learned trial Court, therefore, dismissed the suit vide judgment and decree dated 29.4.2006. The judgment and decree so passed was further assailed by the plaintiffs in learned lower Appellate Court in Civil Appeal No. 33-S/13 of 2006 which has also been dismissed vide judgment and decree dated 25.9.2006, under challenge in the connected appeal.

The challenge to the judgment and decree is on the grounds, inter alia, that if learned lower appellate Court was of the view that RSA No. 328/2003 qua the same subject matter of dispute is pending disposal in the High Court, the proceedings in the suit should have been stayed under Section 10 CPC. Learned lower Appellate Court did not stay the proceedings in the suit irrespective of findings in this regard recorded on issue No. 2 by the trial Court. In stead of staying the proceedings under Section 10 CPC, learned lower appellate Court has erroneously proceeded to dismiss the appeal. When in the opinion of both Courts below, the controversy involved was the same as in Regular Second Appeal No. 328/2003; the suit should have been stayed and not decided on merits. Learned trial Court has allegedly decided issue No. 2 having been turned redundant erroneously. In view of the evidence available on record, the plaintiffs were entitled to the decree for recovery of Rs. 1,00,000/- towards use and occupation charges as the defendant was in unauthorized possession of the suit premises. The dismissal of suit by both Courts below is neither legally nor factually sustainable.

Shri Bhupender Gupta, learned Senior Advocate, assisted by Ms. Charu Gupta, Advocate has vehemently argued that the appellant-defendant is not in the use and occupation of the suit premises as a licensee, but in the capacity of a tenant. He has pointed out from the evidence available on record that the payment of rent to the plaintiffs make it crystal clear that they have inducted him as tenant and not allowed to occupy the suit premises in the capacity of licensee.

On the other hand, Shri K.D. Sood, learned Senior Advocate assisted by Shri Rajnish K. Lall, Advocate, while repelling the arguments addressed on behalf of the appellant-defendant has urged that the appellant-defendant is in possession of the suit land as licensee and not a tenant. Mr. Sood in order to buttress the arguments so addressed has pressed into service the pleadings and also the evidence available on record.

Now if coming to the substantial questions of law, the 1st question is as to whether the findings of learned lower appellate Court that the conclusion drawn by the trial Court qua creation of tenancy in respect of the suit property by the plaintiffs in favour of the defendant being dehors the evidence available on record, are not legally and factually sustainable. In order to decide this question, reappraisal of the pleadings of the parties and also the evidence available on record is required.

As noticed hereinabove, the case of the plaintiffs is that the defendant was allowed to occupy the suit premises on the request he made, with the understanding that he will vacate the same as and when his own house will be constructed at Solan. Though he has constructed his own house, however, irrespective of the assurances held out, failed to vacate the premises in question and when requested by PW-1 Dayal Prashad, the Power of Attorney of the plaintiffs, gave beating to him. The defendant has, however, set up the plea of tenancy in his defence, as according to him he was inducted as tenant in the premises in question at the monthly rent of Rs. 90/- which was settled by PW-1 Dayal Prashad. Therefore, the controversy in the present lis is as to whether the defendant is a tenant or licensee. Learned lower appellate Court on re-appraisal of the pleadings and also the evidence available on record in detail has arrived at a conclusion that the defendant is in possession of the premises in question in the capacity of licensee and not tenant.

Before coming to the given facts and circumstances and also the evidence available on record, it is desirable to take note of as to under what circumstances, the transfer of immovable property by the owner in favour of 3rd person can be termed to have been transferred as licensee and what constitutes a valid tenancy/lease. The law on the point is no more res integra, as the High Court of Delhi in Shri Arjan Dev Vs. Shri Om Parkash, , while dealing with a case having facts more or less identical in nature has held as under:

Issues 2 and 4 have been dealt with together in the impugned judgment. There is no evidence that the suit property is joint family property or that the parties were messing together as a Joint Hindu Family. The documents both marked Ext. PW 1/1 and Ext. PW 1/3 clearly show that it is the plaintiff who is owner of the property. In fact in the documents both marked Ext. PW 1/1 the defendant himself has signed as a witness. There is no rebutting the evidence of the plaintiff that the house was allotted to him at the time of partition of the country at his instance when he was serving in the Indian Navy and posted at, Singapore. The claim of the legal heirs of the deceased Dewan Chand Sethi as per Hindu Law existing at that time was accepted by the rehabilitation authorities for Rs. 61,466/-. The claimants were the widow of the deceased Dewan Chand Sethi and his three sons, two of them being the plaintiff and defendant in the suit. The share of all these four legal heirs was assessed at Rs. 15,366.50. Each of the legal heirs got interim compensation, separately, the defendant also getting his share of Rs. 5,081/-. Admittedly, the plaintiff got his claim adjusted towards price of the suit property, and Rs. 200/-. out of the claim of the mother of the parties was also adjusted towards price of the house. Assuming that the compensation received by the defendant and the eldest son S.N. Seth were spent on the wedding of their sister, is hardly sufficient evidence to show that the house was a joint family property. The fact that the claim of the mother to the extent of Rs. 200/- was associated with that of the plaintiff towards purchase price of the house is also no circumstance to hold that it is a joint family property. Again the fact that the defendant was living with his mother as family member along with sisters of the parties when the plaintiff was posted out is not a circumstance in any way to hold existence of a Joint Hindu Family. The defendant was minor at the time of partition of the country. He was staying with the mother. He got married. Two years earlier the plaintiff got married. Since the family could not pull on together the defendant started his kitchen separately, that could not mean that there was disruption in the status of Joint Hindu Family. No value can be attached to the statement of DW-2, the third brother of the parties, that the house was a joint family property. The defendant never objected that this third brother DW-2 was also necessary in the suit and he did not claim any issue on that account as ''well. There is no document to show that the defendant at any point of time claimed the house to be a Joint Hindu Family Property. In the presence of the documents the oral testimony of the defendant and his brother S.N. Seth (DW-2) has no value. Then Mr. Makhija, learned counsel for the defendant, said that there could not be any license as license could only be created by a contract and the whole basis of the suit was wrong. Under Section 52 of the Indian Easements Act, 1882, license is defined. It says where one person grants to another a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license. It is not necessary that for purpose of creation of license any instrument be written. Defendant as a younger brother of the plaintiff had been living in his house with their mother as a family member. When he got married and started his kitchen separately, he continued to stay in the house with the permission of the plaintiff. It did not give any right of easement or interest in the property to the defendant. Under Section 54 of the aforesaid Act, the grant of license may be express or implied from the conduct of the grantor. The defendant was living in the house as brother of the plaintiff and was, therefore, a licensee. The defendant was, therefore, staying in the suit property as a licensee which license was revoked by the plaintiff.

Similar is the ratio of the judgment, again that of the High Court of Delhi in Megh Raj Vs. M/s. DCM Limited, 2001 (1) Civil Court Cases 423, which reads as follows:

In the present case the deed is described as a license deed but the said nomenclature as has been held by the Supreme Court, may be relevant but what is relevant is the nature of the allotment for which we have to consider the other relevant clauses which have been extracted above. Clause (1) thereof categorically provides that the shop would be run only for the sale of milk products namely-for butter, ghee, cream etc. for the benefit of the workers and their families residing in the DCM colony. Clause (6) thereof also categorically provides that license is neither heritable nor assignable and the licensee agrees not to part with or otherwise assign, sublet, mortgage etc, the said shop or any part thereof. Clause (5) provides that the licensee would not personally run the business so long as he continues to be on the Company''s rolls but he shall run the business with the held of his representative or his employees. The license was also revocable at the will of the company without assigning any reason thereof and on such revocation the possession of the shop was required to be handed over in the same condition as it was taken from the Company on license. The express intention of the parties therefore, was that the shop would be run only for sale of a particular product and the aforesaid sale to be carried out from the said shop was to cater to the needs of a particular group of people namely - the workers and their families residing within the DCM housing colony. It was also one of the express conditions that the license would not be heritable or assignable and on expiry of the period of license i.e. a period of 2 years and on expiry of the renewed period, if any, possession was to be handed over to the respondent. It was also made clear in the deed that the appellant would not use the shop for any other purpose than for the purpose of selling the milk and milk products from the said shop.

The support in this regard can also be drawn from the judgment of High Court of Allahabad in Ajab Singh Vs. Shital Puri, 199, Civil Court Cases 497 Allahabad . High Court of Kerala in Ayissa Umma Vs. Ami, 1991 Civil Court Cases 148 (Kerala) , while taking a similar view of the matter has further held that the licensor can ask the licensee to vacate the premises in dispute by way of filing a suit for the decree of mandatory injunction within reasonable time after the termination or revocation of licence. Similar is the view of the matter taken by the High Court of Karnataka in S. Manohar Vs. E.K. Govindaraja Setty, .

However, the Apex Court in The Corporation of Calicut Vs. K. Sreenivasan, , has concluded that a licensee cannot be evicted forcefully from the property in dispute and the licensor can only seek the eviction of the licensee under due process of law. A Division Bench of the High Court of Calcutta in Shyam Sundar Ganeriwalla and etc. Vs. Delta International Ltd. and Another, , has also explained the circumstances under which the lease or licence can be distinguished. We can draw support in this regard from the judgment of Hon''ble Apex Court in C.M. Beena and Another Vs. P.N. Ramachandra Rao, .

What, therefore, transpired from the law laid down in various judicial pronouncements discussed supra, is that whether any property is on lease or licence can only be inferred from the real intention of the parties deciphered in a document, if any executed, and surrounding circumstances, including conduct of the parties before and after they create relationship amongst them. Where the owner grants exclusive possession of any property to third person it amounts to creation of tenancy in favour of such third person and where permission to use any property is granted without the element of exclusive possession, it is called a licence. Suppose a person is permitted to run business in the premises, as in the present case, without creating any interest therein, the same would constitute a licence and not a lease. In Arjan Dev''s case supra, where the facts were identical in nature, as the defendant who was younger brother of the plaintiff, living with widowed mother and sisters in the house of the plaintiff and there being no evidence that the said house was the property of joint family, like in the present case where the house admittedly belongs to the plaintiffs, the defendant irrespective of having started living in that house separately after his marriage with permission of the plaintiffs, it was held that no right of easement or interest in the property in question created in favour of the defendant in that case.

In the present case before this Court also, the defendant is brother of PW-1 Dayal Prashad and plaintiff No. 2 Smt. Bala Sundari is his wife, whereas plaintiff No. 1, sister-in-law (Bhabhi). They are the owners of the premises in question and the defendant has been running business therein. Whether he is in possession of the same as tenant or licensee has to be determined on re-appraisal of the pleadings of the parties and the evidence available on record.

Admittedly, the defendant alongwith his family was settled at Shimla and on account of his adverse financial circumstances, he shifted to Solan and started his business in the premises in question, which admittedly belongs to the plaintiffs. Plaintiffs'' case that the defendant persuaded them through Smt. Prasanni Devi, his mother, residing at that time with PW-1 Dayal Prashad and his wife plaintiff No. 2, to allow him to establish his business in the premises in question stands substantiated from the own testimony of Dayal Prashad while in the witness box as PW-1 and also from that of Shri Purshotam PW 2 non-else, but real brother of the defendant and PW-1 Dayal Prashad. Not only this, but PW-3 Smt. Savitri Devi is their sister-in-law and as per her version also the defendant was allowed to occupy the demised premises by the plaintiffs on being persuaded by Smt. Prasanni Devi and also by this witness, with clear understanding that he will hand over the vacant possession thereof on the construction of his own house to them, however, he failed to do so.

PW 4 Sadhu Ram is the brother of plaintiff No. 1 and he has also supported the plaintiff''s case in this regard. No doubt they all have been subjected to lengthy cross-examination, however, nothing material could be elicited by the defendant from their version in cross-examination that he was inducted as tenant and not in possession of the premises in question as licensee.

If coming to the evidence produced by the defendant, he himself stepped into the witness box as DW 1 and came forward with the version that he was inducted as tenant in the demised premises by the plaintiffs in August, 1976. The same is comprising of a shop having three rooms in the ground floor and two residential rooms in the upper floor. According to defendant, rent was Rs. 90/- per month and the electricity and water charges he used to pay himself. He installed a flour mill in the premises in question out of his own funds and subsequently raised loan also. The rent, according to him, was paid upto February, 1992. According to him, no receipts were being issued in token of the receipt of rent by the plaintiffs. However, in the account books pertaining to his business he used to make entries qua payment of the rent. In his cross-examination, he denies that he was allowed to retain the demised premises in question as a licensee. He also denies having constructed his own house at Solan, however, admits the house constructed by his wife and the same occupied by them on 13.12.1990. Though he also denies the invitation card printed by him jointly in his name and in that of his wife, however, the invitation card Mark-B reveals that at the time of "Grih Pravesh", the invitation to relatives and friends was from him also in addition to his wife Smt. Tripta Devi. He admits that the flour mill was closed by him in the year 1987 and his son started the work of scooter repairs. He further states that later on his son started scooter repair work in a shop hired at Circular Road, Solan. He denies that in the premises in question, after closing his business, he has converted the same into a godown and stated that he is dealing in the business of food grains therein since 1977.

The close scrutiny of the statement of defendant leads to the only conclusion that he has miserably failed to prove the plea of tenancy, he raised in his defence. He rather seems to have closed the business in the premises in question and retained the possession thereof merely to harass the plaintiffs for the reason that as per his own version his brothers, including PW-1, always treated him like servant and it is due to that he left Solan and started doing job at Shimla. He also admits his relations being strained with the plaintiffs. Therefore, the possibility of he having retained the premises in question to torture and harass the plaintiffs cannot be ruled out. He has failed to prove the payment of rent by him to PW-1 Dayal Prashad. The plea that entries qua payment of rent used to be made by him in the books of account of his business is also not substantiated on record as no such record is produced by him during the course of the evidence.

Shri Raj Kumar DW 2, a co-tenant, has not supported his case and rather turned hostile. In his cross-examination no doubt this witness has admitted his signature on affidavit Ext. DX, however, according to him his mental condition was not in order, when the affidavit was got signed from him.

If coming to the statement of Pawan Kumar DW 3, he belongs to a distant place. According to this witness, he used to buy flour from the flour-mill being run by the defendant. His testimony that on occasions as and when he used to be there in the flour-mill, the rent used to be collected by Dayal Prashad (PW 1) in his presence stands belied from his own testimony in the cross-examination that he is doing tailoring work, but not aware of the names of his customers and also that name of any other customer of defendant is not known to him nor anyone came in his presence to buy flour from the defendant. When as per his own statement there situate many shops of food grains nearby his tailoring shop, it is highly unbelievable that he had been purchasing flour from the defendant. Above all, he is not aware as to how much amount towards rent was paid by the defendant in his presence and as per his further version no entry was made qua payment of rent by the defendant in any record in his presence. This witness, therefore, is a liar and made false statement to the reasons best known to him.

If coming to the statement of DW 4 Purshotam Lal, he claims himself to be a carpenter and was engaged by the defendant as such during the construction of his house at Solan. He also states that as and when he was with the defendant, noticed Dayal Prashad coming there and asking for rent. However, rent of what, not known to him. Not only this, how much money the defendant used to pay to said Shri Dayal Prashad, is also not known to him. Therefore, when he had no knowledge as to in what connection the defendant used to pay money to Dayal Prashad, it cannot be said that he has witnessed the payment of rent in respect of the premises in question by the defendant to the plaintiffs. Therefore, his testimony is also of no consequence.

If coming to Ext. PB, an application for sanction of water supply connection, whether plaintiff Mayawati has raised ''no objection'' qua sanction of the connection in favour of Rajiv Kumar Gupta son of the defendant, is not proved on record for the reason that PW 5 Krishan Dutt, who has produced the record, has categorically stated that verification of the signature of the owner on this document was not got conducted by the Municipal Committee. Therefore, it would not be improper to conclude that the signature of plaintiff No. 1 was manipulated on this document with a view to obtain the water supply connection from Municipal Committee, Solan.

If coming to Bill Ext. PW 5/C, since the defendant was in possession of the demised premises in question in the capacity of licensee, therefore, it was his responsibility to make payment of the charges on account of consumption of water. Therefore, this document is also hardly of any help to the defendant''s case.

Now if coming to Ext. PC, a certificate issued by Punjab National Bank, Solan Branch, the perusal thereof reveals that the defendant has obtained loan in the name of M/s. Gian Flour Mills against the FDRs in the joint names of Smt. Bala Sundari plaintiff No. 2 and her husband Shri Dayal Prashad. Meaning thereby that the plaintiffs had otherwise also helped the defendant so that he could establish his business. However, looking to the conduct of the defendant, in lieu of the help extended to him by the plaintiffs and other members of their family and also allowing him to occupy the suit premises free of charges, he instead of being courteous and grateful to them, has refused to vacate the same even on construction of his own house, may be on the plot purchased by him in the name of his wife and rather when his elder brother Dayal Prashad PW-1 requested him to vacate the premises in question, gave beating to him. He even failed to hand over the vacant possession of the premises in question to the plaintiffs despite receipt of legal notice Ext. PF and rather invented a false story of having been inducted as tenant in the demised premises by the plaintiffs.

Therefore, in the considered opinion of this Court, the conclusion drawn by learned lower appellate Court that the findings qua tenancy in respect of demised premises created by the plaintiffs in favour of the defendant recorded by the trial Court are dehors the pleadings of the parties and the evidence available on record, is neither legally nor factually unsustainable nor render the judgment and decree illegal or vitiated. Hence, on this score no interference by this Court is warranted.

Now if coming to the 2nd substantial question of law, it was never the case of the appellant-defendant in the trial Court that the suit for the purpose of court fee was valued by the plaintiffs in disregard to the law laid down by this Court. Learned counsel representing the appellant-defendant has also not brought to the notice of this Court any such law laid down by this court. Rather no argument qua this aspect of the matter addressed. On the other hand, when there was no pleading qua valuation of the suit in the written statement nor any issue framed or pressed, there is no question of involvement of any such legal question in the present lis. The Hon''ble Apex Court in Bachhaj Nahar Vs. Nilima Mandal and Another, , has held that in the absence of the pleadings and an issue, to make out a new case in the regular second appeal is not legally permissible. This judgment reads as follows:

"9. The object and purpose of pleadings and issues is to ensure that the litigants come to trial with all issues clearly defined and to prevent cases being expanded or grounds being shifted during trial. Its object is also to ensure that each side is fully alive to the questions that are likely to be raised or considered so that they may have an opportunity of placing the relevant evidence appropriate to the issues before the court for its consideration. This Court has repeatedly held that the pleadings are meant to give to each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between the parties, and to prevent any deviation from the course which litigation on particular causes must take."

Similar is the ratio of the judgment again that of Hon''ble Apex Court in Baljinder Singh Vs. Rattan Singh, , as it is held in this judgment that High Court in a regular second appeal cannot make out a new case and decide the same. Therefore, the appellant-defendant cannot be permitted to make out a case which was never agitated in both Courts below nor any such legal question arises for determination in the present appeal.

In view of what has been said hereinabove, there is no question of law involved for determination in this appeal and as such the judgment and decree under challenge cannot be said to be legally and factually unsustainable.

RSA No. 490/2006

Now if coming to the connected Appeal RSA No. 490/2006, the same has been admitted on the following substantial questions of law:

Whether the judgment and decree of the court below is perverse, based on misconstruction of the pleadings of the parties and the evidence available on record more particularly the judgment Ext. PW 1/A which has vitiated the findings?

Whether in view of the provisions of Section 10 CPC the Court was justified in dismissing the suit rather than staying the same in view of the findings recorded by the Court below that the matter involved in the suit and Regular Second Appeal No. 328 of 2003 pending in the High court were similar when the provisions of Section 10 were mandatory?

Whether in any event, the Court below was justified in not decreeing the suit of the plaintiff when the defendant was admittedly in occupation of the property and was required to pay the use and occupation charges especially when the question of tenancy rights of the defendants had not been finally decided?

Whether the assumption of the court below that the plaintiff had not challenged the findings of the trial Court on issue No. 2 and that the plaintiff was raised from raising the plea of stay of the suit is based on wrong assumptions?"

It is seen that the owners of the demised premises common in both appeals, have claimed a decree for recovery of Rs. 1,00,000/- towards damages on account of wrongful use of the same by the defendant. The suit was instituted by them on 18.5.2000 i.e. during the pendency of the previous Civil Suit bearing No. 520-1 of 1993. As noticed in this judgment while deciding the main appeal hereinabove, Civil Suit No. 520-1 of 1993 filed by the plaintiffs for a decree of mandatory injunction against the defendant was dismissed by the trial Court. Learned lower appellate Court, however, decreed the same and ordered the eviction of the defendant from the demised premises. The main appeal preferred by the defendant against the judgment and decree passed by learned trial Court was admitted vide order Ext. PW 1/E and the execution thereof stayed. Meaning thereby that when the suit for recovery of Rs. 1,00,000/- was filed against the defendant, Civil Suit No. 520-1 of 1993 was pending in the trial Court itself. After dismissal of the suit, the appeal remained pending in the learned lower appellate Court and subsequently in this Court. The execution of the judgment and decree passed by learned lower appellate Court in that suit was stayed by this Court as is evident from the order Ext. PW 1/E supra. Since the question that the defendant was in possession of the demised premises as tenant or licensee was under consideration in the previous suit, therefore, without determining such question, the claim of the plaintiffs qua recovery of damages could have not been decreed. Both Courts below have, therefore, rightly dismissed the claim of the plaintiffs being premature. No doubt learned lower appellate Court has decreed the previous suit vide judgment and decree Ext. PW 1/A, however, since this Court has stayed the execution thereof in the main appeal, as noticed hereinabove, therefore, it cannot be said by any stretch of imagination that the findings recorded by both Courts below are perverse being based on misconstruction of the pleadings of the parties and the evidence available on record, more particularly the judgment and decree Ext. PW 1/A. Therefore, the 1st and 3rd substantial questions of law do not at all arise nor on that score the judgment and decree impugned in this judgment can be said to be perverse or legally unsustainable.

Now if coming to substantial questions of law No. 2 and 4, the same pertain to staying of proceedings in suit during the currency of previous suit, as the subject matter of dispute in both suits is directly and substantially in issue. The subject matter of dispute in both suits was in issue not only directly but substantially also and rather the fate of the suit out of which the connected appeal has arisen was based upon the decision to be rendered in the previous suit out of which the main appeal has arisen. Therefore, the appropriate course available to the trial Court was to have stayed the proceedings in the subsequent suit filed for the recovery of Rs. 1,00,000/- against the defendant towards damages. Learned trial Court has, however, discarded this part of the defendant''s case on the ground that irrespective of his claim in the written statement that the proceedings in the suit are liable to be stayed under Section 10 CPC, none of the parties pressed the same to be decided at the outset of the proceedings in the suit. Therefore, learned trial Court while answering issue No. 2 has held that the parties are now estopped from pressing the claim qua staying of proceedings in the suit. As a matter of fact, the claim that the suit is liable to be stayed under Section 10 CPC in the preliminary objections and the plaintiffs having not filed any replication thereto, it was the bounden duty of the learned trial Court to have considered this aspect of the matter before proceeding further in the suit. It has, however, not been done so and to the contrary further proceedings in the suit conducted. Therefore, learned trial Court is not right in holding that since the parties did not press for staying the proceedings in the suit under Section 10 CPC, therefore, they were estopped at subsequent stage from claiming the same. The findings recorded by learned lower appellate Court that the findings on issue No. 2 were not further challenged and the defendant rather accepted the same are also not in accordance with the record, for the reason that the defendant may have not assailed the findings on issue No. 2 and rightly so because the suit otherwise was also dismissed, however, it is the plaintiffs themselves who in the grounds of appeal have raised the question of staying the proceedings in the suit under Section 10 CPC while submitting that had there been any doubt in the mind of the trial Court qua admissibility of the relief sought in the plaint pending disposal of the regular second appeal in this Court in the previous litigation, the proceedings in the suit should have been stayed instead of dismissing the same on this score. Therefore, the question of staying further proceedings in the suit was not only raised before learned trial Court, but also before learned lower appellate Court. Both Courts, however, have ignored the same without any reason cogent and reliable.

Now if coming to the legal position qua this aspect of the matter, Hon''ble Apex Court in Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor, , has held as under:

"11. 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. 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. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, 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."

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.

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. 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. Reference in this connection can be made to a decision of this Court in Dunlop India Limited Vs. A.A. Rahna and Another, in which it has been held as follows:

"35. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June 1998, in the second set of petitions, the period of non-occupation commenced from September 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the appellate authority because till 2-8-1999, the premises were found kept open and alive for operation. The appellate authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K. Agarwal on 1-10-2001 that the Company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1-10-2001; that no activity had been done in the premises with effect from 1-10-2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the appellate authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause."

(Underlining ours)

It is thus seen that the provisions contained under Section 10 of the Code of Civil Procedure are mandatory in nature and as such it was for both Courts below to have considered this aspect of the matter in the light of material available on record and as the subject matter of dispute in the present suit was substantially and directly in issue in the previous suit, i.e. Civil Suit No. 520/1 of 1993, therefore, the proceedings in subsequent suit should have been stayed under Section 10 CPC and the suit not dismissed on merits. The dismissal of the suit in ignorance of the claim of the parties under Section 10 CPC, therefore, has definitely rendered the impugned judgment and decree legally and factually unsustainable and as such, the findings recorded on issue No. 2 by learned trial Court and affirmed by learned lower appellate court are perverse being not legally and factually sustainable. Therefore, the same are hereby quashed and set aside and as a result thereof, the judgment and decree whereby the claim for recovery of Rs. 1,00,000/- has been declined only on the ground of pendency of the main appeal in this Court itself deserve to be quashed and set aside being not legally sustainable, as during the pendency of appeal in previous litigation before this Court, the proceedings in subsequent suit should have been stayed. I, therefore, set aside the judgment and decree under challenge in this appeal. Consequently, the judgment and decree passed by learned trial Court shall also stand set aside being not legally and factually sustainable. Resultantly, Civil Suit No. 148/1/04/2000 is remanded to the trial Court with a direction to restore the same to its original number and file and dispose it of on merits on the basis of evidence available on record, after affording due opportunity of being heard to the parties on both sides. Opportunity to the parties to amend the pleadings, if needs in the changed circumstances or produce any other and further evidence be also granted.

In view of above discussion, the present appeal RSA No. 328 of 2003 is dismissed and the judgment and decree passed by learned lower Appellate Court affirmed, whereas the connected appeal RSA No. 490 of 2006 succeeds and the same is accordingly allowed. Civil suit No. 148/1/04/2000 is remanded to the trial Court for fresh disposal in the light of observations hereinabove. However, there shall be no order so as to costs.

Both appeals stand disposed of accordingly.