M/s. Ganeshram Ramjidas Agarwal vs Smt. Sushila Devi Agarwal

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution, challenges the order, Annexure P-1, dated 15.3.2013 passed in Civil Suit No. 12A/2013 by 14th Additional District Judge, Gwalior. By this order, the court below has rejected the application preferred by the petitioner u/s 10 CPC. Although by impugned order certain other applications are also decided, learned counsel for the petitioner has confined his argument against the order to the extent section 10 application is decided.

Shri D.D. Bansal, learned counsel for the petitioner criticized the order, Annexure P-1, by taking this Court to the first suit (Annexure P/4) and second suit (Annexure P/2). By taking this Court to the pleadings of the said suits and the issues framed by the court in the said matters, Shri D.D. Bansal submits that the matter and various issues in both the suits are same and, therefore, the court below has erred in rejecting the application. In support of his contention, he relied on a judgment of Madras High Court, reported in AIR 1992 MAD 363 (R. Srinivasan vs. Southern Petrochemical Industries Corporation Ltd.) . By relying on para 8 of the said judgment, it is contended that section 10 CPC does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. He also relied on the judgment of Supreme Court reported in P.V. Shetty Vs. B.S. Giridhar, He further placed reliance on the judgment of Supreme Court, reported in Radha Devi Vs. Deep Narayan Mandal and Others

Shri Sanjeev Tiwari, learned counsel for the other side, per contra supported the order and submits that there is no legal error in the order.

I have heard learned counsel for the parties and perused the record.

The first suit was filed for declaration and permanent injunction by the petitioner. In the said case, a declaration is sought that the petitioner is a valid tenant of the godowns of the landlord/respondent. It is further prayed that he be not evicted by the landlord or by her associates without following the due process of law. Lastly, it is prayed that as per the rent agreement, the landlord shall give receipts after receiving the rent. In the second suit filed against the petitioner, the landlord prayed for recovery of rent, payment of rent @ Rs. 2700/- per month from the date of institution of suit and eviction of encroached portion of the suit property with compensation.

The question is regarding the test for applying Section 10 of CPC. In the opinion of this Court, the curtains are recently drawn on this aspect by the Supreme Court in Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor, . The extract of the same reads as under:-

The key words in Section 10 CPC are "the matter in issue is directly and substantially in issue in a previously instituted suit". The test for applicability of Section 10 is whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit. When the matter in controversy is the same, it may be immaterial what further relief is claimed in the subsequent suit. Though 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 the application of Section 10 CPC the entire subject-matter of the two suits must be the same. Section 10 CPC will not apply where a few of the matters in issue are common and will apply only when the entire subject-matter in controversy is the same.

(Emphasis Supplied)

A bare perusal of this interpretation given by Supreme Court makes it clear that the "matter in issue" must be same in two suits. At the cost of repetition, it is made clear by Supreme Court that entire subject matter of two suits must be the same. Thus, the judgment of Madras High Court relied by Shri D.D. Bansal, in which different view was taken, is of no assistance to him.

In the present case if pleadings and reliefs claimed in both the suits are examined in juxtaposition, it will be clear that the entire subject matter of two suits is not the same. Section 10 cannot be made applicable where few of the matters in issue are common and it applies only when the entire subject matter in controversy is the same.

The test is also laid down in para 11 of the judgment in Aspi Jal (supra). As per this para, the test is whether a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit. If this litmus test is also applied with regard to the aforesaid suits, I am unable to hold that the said test is satisfied and, therefore, Section 10 has not been applied by the Court rightly. I find no legal flaw in the order passed by the court below. Other judgments cited by Shri Bansal are based on different facts and circumstances and have no application in the present case.

The scope of interference under Article 227 of the Constitution is well defined. Interference can be made if the order suffers from any jurisdictional error or manifest procedural irregularity or impropriety or it is pregnant with any palpable perversity. No such ingredients are available on which interference can be made. Resultantly, the petition is meritless and is hereby dismissed. No costs.