Sakhawatrai vs Prem Narain

Shivdayal, J.—This revision is directed against an order of remand made u/s 151 of the Code of CPC by the learned District Judge, Gwalior.

The facts material for this revision are that on August 3, 1959 Prem Narain previously instituted a suit for ejectment against the Petitioner, his tenant on the ground contained in Section 4 (m) of Accommodation Control Act. (This suit will be called the "previous" suit). It was numbered Civil Original Suit No. 171 of 1959 and was instituted in the Court of Third Civil Judge, Second Class; Gwalior. A notice determining the tenancy was given on 27-3-59.

Another suit out of which the present revision arises was instituted by the same landlord against the same tenant in the Court of the First Civil Judge, Second Class, Gwalior on March 8, 1960 (No. 107 of 1960). This is also a suit for ejectment but it is founded on Section 4 (a) of the Accommodation Control Act and there is an additional prayer for recovery of arrears of rent. (This will be called the "present" suit).

In the present suit, which was resisted by the Defendant the learned trial Judge passed a decree in favour of the Plaintiff for Rs. 110/- as arrears of rent but dismissed the claim for eviction, holding that the tenancy was not validly determined by legal notice and the Plaintiff''s notice dated 6-12-59 was invalid and ineffective.

The Plaintiff took an appeal to the District Judge Gwalior who has set aside the judgment and decree of the trial Judge and has remanded the case u/s 151 C.P.C. for fresh trial and decision according to law "after giving to the parties lull opportunity to amend pleadings and lead evidence if they so like". He has also directed the trial Judge to stay the present suit u/s 10 read with Section 151 of the Code of CPC until final decision of the previous suit. He, however, found against the Defendant on the pleas regarding waiver of the previous notice by the Appellant and regarding tender of rent by the Defendant.

It seems clear to me that the learned Judge of the appellate Court is in error in applying S. 10 C.P.C. The first requirement of that section is that the matter in issue in the previously instituted suit and the subsequent suit must be directly and substantially the same. The previous suit for ejectment was based essentially on two allegations: (1) that the tenancy was determined by notice dated 27-3 59: and (2) that the tenanted pre-mises required such repairs as were not possible except after eviction of the tenant. In the present suit matter in issue is again two fold: (1) whether the tenant failed to pay arrears of rent within one month of demand notice ; and (2) whether the tenancy was determined by notice dated 6-12-59 so as to entitle the Plaintiff to a decree for ejectment, In the present suit the Plaintiff has asserted in paragraph 8 of the plaint that he gave notice to the Defendant on 6-12-59 whereby he demanded payment of arrears of rent since 1 4-59 and also intimated to the Defendant that in a case of default of payment of rent, his statutoty tenancy would come to an end on 31-1-60.

From this it is patent enough that the matter in issue in the previous suit were not directly and substantially in issue in the present suit. The decision of the present suit depends essentially on the question whether by the Plaintiff''s notice dated 6-12-59 the tenancy was determined and whether the Defendant failed to pay rent within one month of the receipt of the said notice. Neither of these two issues was-not indeed could be-an issue in the previous suit. Merely because the prayer in both the suits was for ejectment of the tenant, it cannot be said that the matter in issue was directly and subs tantially the same in both the suits. Identity of reliefs claimed is not the crux of the matter: what is to be examined is whether the matters in controversy in the two suits are substantially the same. The principle behind Section 10 C.P.C. is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating two parallel litigations in respect of the same cause of action. The legislative policy is to obviate the possibility of contradictory decrees on the same matter in controversy. One test of the applicability of Section 10 is whether the final decision in the previous suit would operate as res judicata in the subsequent suit (see AIR 1947 154 (Nagpur) ). Now it cannot be argued by any stretch that the matters in issue in the present suit can be decided on the basis of the decision of the issues in the previous suit. Thus there is no possibility of any contradictory findings on the same issues inasmuch as the issues themselves are different It will not be anomalous if in one of the two suits a decree for ejectment is passed and the other one is dismissed.

In the present suit the Plaintiff did not state that the tenancy had already been determined, by the notice which had been given on 27-3-59 prior to the institution of the previous suit. Evidently, it occured to the appellate Court that the present suit did not lie unless the tenancy had been determined and the Plaintiff might avail himself of the notice dated 27-3-59 for the purposes of the present suit as well. It being so, he found that the issue relating to that notice became common in both the suits. I would guard myself from making any observations about the validity or operation of that notice. Assuming that that issue is common to both the suits, it does not necessarily attaract Section 10 of the Code of Civil Procedure. That section comes into play when there is substantial identity of matters in controversy. See Sheikh Mohd. Yasin v. Sheikh Mohd. Abdur Razzaque, AIR 1954 Pat 10 ; Bharat Nidhi Ltd. v. Shadilal, AIR 1954 P&H 114 ; L. Nem Kumar Agarwal Vs. Nem Kumar and Another, . The very language of the suction requires that the matter in issue in the two suits must be directly and substantially the same. In other words, there must be substantial identity of the subject matter and the field of controversy between the parties in the two suits, although they may not be the same in every particular. As seen above, the present suit could not be stayed u/s 10 C.P.C.

Regarding Section 151 C.P.C. it does not appear from the judgment of the appellate Court how it is necessary for the ends of justice to stay the present suit. It is true that Courts have jurisdiction to stay the trial of a suit u/s 151 of the Code because of the pendency of another ( Radhe Shyam Agarwal Vs. Kashinath Vaish and Another, but, before exercising its inherent powers, the Court must point out how such a stay would be in the interest of justice. I am clearly of the opinion that the stay of the present suit just because of the pendency of the previous suit would Unnecessarily delay the disposal of the present suit and no useful purpose whatever will be served. Far from preventing abuse of the process of the Court, justice will only suffer if the present suit is stayed. Inherent powers must be sparingly used. Here they have been unwarrantedly exercised.

Then again, even if stay were necessary for the ends of justice, the appellate Court should have only stayed its own hands awaiting the result of the appeal which was pending in the same Court (may be before another Judge). Learned Counsel for the Defendant tells me that the previous suit had been dismissed by the Court of first instance before the Defendant filed the written statement in the present suit. He further tells me that the appeal filed by the Plaintiff from that dismissal has also been since dismissed, so that the previous suit is not pending now.

Neither in the appellate Court nor before the trial Judge, did the Defendant or the Plaintiff pray for stay of the present suit. Relying on the general principles enunciated in Jang Bahadur v. Bank of Upper India, 55 IA 227, Mr. Justice Vivian Bose has held in AIR 1937 132 (Nagpur) , that the rule enacted in Section 10 C.P.C. is of procedure pure and simple and can be waived by the parties It is really unnecessary for the purposes of this revision to enter into the question whether the provisions of Section 10 C.P.C. affect the jurisdiction of the Court.

On a perusal of the memorandum of appeal filed by the Plaintiff, I do not see any grievance that full opportunity to lead evidence was not given; nor is there a prayer for leave to amend the plaint. Nor indeed the Defendant made any such prayer. In fact he is aggrieved by the order of remand and by affording fresh opportunity to amend pleadings and produce additional evidence. The contention of the Petitioner that the learned District Judge was not justified in suo motu allowing the parties to amend their pleadings and to lead additional evidence must, in my judgment, be given effect to. Giving fresh opportunity as a matter of grace, to fill up lacuna in evidence is not warranted by law. It is worthy of mention that the Plaintiff did not appear before me to support the judgment of the appellate Court. He cannot be saddled with costs.

Before I leave this case I must observe that if the appellate Court had reached the conclusion that the present suit should be stayed u/s 10/151 C.P.C., and he had proposed to grant and unrestricted leave to both the parties to amend their pleadings and an unfettered opportunity to produce fresh evidence he should not have given his own findings on any issue.

For all these reasons this revision is allowed. The judgment and order passed by the District Judge, Gwalior, are set (sic) The case shall go back to him to finally decide Civil Appeal No. 114-A of 1960, after giving fresh hearing to the parties. In the circumstances already set out I direct that the Petitioner shall bear his own costs in this revision.