Hashmat Ullah Khan vs Iqbal Ahmad Khan alias Mintoo

Rakesh Tiwari, J.—Heard learned Counsel for the petitioner and perused the record.

The petitioner has prayed for a writ in the nature of certiorari quashing the Judgment and order dated 21.10.2005, passed by the Judge Small Cause Court, Agra and the judgment and order dated 9.5.2006, passed by the District Judge, Agra, contained in Annexures-6 and 8 respectively to the writ petition besides a writ in the nature of mandamus commanding the respondent not to proceed further in the S.C.C. Suit No. 57 of 2004, pending before the Judge Small Cause Court, Agra, until the decision of Original Suit No. 349 of 2003, Smt. Qamar Jahan and Ors. v. Shri Iqbal Ahmad and Ors., pending in the Court of the Civil Judge (Senior Division), Agra.

The brief facts of the case are that the plaintiff-respondent Iqbal Ahmad Khan alias Mintoo Son of late Sri Yakoob Khan Resident of 15/2,Ghalia Azam Khan Post Ghatia Azam Khan city and district Agra filed S.C.C. Suit No. 57 of 2004, Iqbal Ahmad Khan v. Hasmatullah Khan, alleging himself to be the sole landlord of the property praying for the relief of eviction and arrears of rent against the defendant-petitioner.

The defendant-petitioner contested the suit by filing written statement denying the relationship of sole landlord and tenant between him and the plainlilf-respondent. He also stated that the rent had never been paid to the plaintiff-respondent, but had been paid to Mohd. Yaqoob, who was the father of the plaintiff- respondent and that after his death there was dispute regarding succession amongst his heirs and brothers in respect of which Suit No. 349 of 2003, Smt. Qamar Jahan and others v. Iqbal Ahmad Khan and others, was filed which is said to be pending in the Court of the XIIth Additional District Judge. Agra.

The defendant-petitioner took the stand that unless the property of Mohd. Yaqoob Khan was partitioned; the plaintiff-respondent could not claim the relief of eviction of the defendant-petitioner-from the portion fell in his share and in the tenancy of the defendant-petitioner.

The petitioner also moved an application (Paper No. 27C) u/s 10, C.P.C. for stay of proceedings of the S.C.C. Suit No. 57 of 2004, till the disposal of earlier Suit No. 349 of 2003 regarding partition of the suit properly. The aforesaid application was rejected by the Judge Small Cause Court vide order dated 21.10.2005. Aggrieved, the petitioner filed Civil Revision No. 38 of 2005, Hasmatullah Khan v. Iqbal Ahmad Khan, for stay of proceedings of the S.C.C. Suit No. 57 of 2004.

It will be relevant to quote the provisions of Section 10, C.P.C., which provides:

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.

The revision has also been dismissed vide order dated 9.5.2006, directing the record to be sent back to trial court for further proceedings.

The courts below have held that for applying the aforesaid provisions of Section 10, C.P.C. the defendant has to prove that the matter in Issue in both the suits is substantially the same, but the controversy in issue in S.C.C. Suit No. 57 of 2004 was regarding the relationship of landlord and tenant between the parties whereas in Suit No. 349 of 2003 there was a dispute in respect of partition of property amongst the heirs of Mohd. Yaqoob Khan in which the courts below had to decide the shares of his heirs/sons.

After appraisal of the facts and reliefs claimed in both the suits, the courts below came to the conclusion that the entire subject-matter in both the suits was not identical and substantially the same. Regard may also be had to the ingredients of Section 10, C.P.C., which provides that the trial of the subsequent suit can only be stayed when the Court trying the previous suit has Jurisdiction to grant the relief sought in any subsequent suit. These essential Ingredients of Section 10, C.P.C. are missing in the Instant case as it is clear from the fact that the S.C.C. Suit No. 57 of 2004 was filed for recovery of rent and ejectment of tenant which could not be granted by the courts below in Suit No. 349 of 2003 wherein the relief of partition of specific portion of the property is pending.

The matter regarding ejectment and recovery of rent is exclusively in the jurisdiction of the Judge Small Cause Court, Agra. Furthermore, the petitioner has come up against an interlocutory order rejecting his application u/s 10, C.P.C.

For all these reasons stated above, the Court is not inclined to exercise its extraordinary jurisdiction under Article 226 of the Constitution in this case. The petition is accordingly dismissed. No order as to costs.