Trivenidi vs Vijay Mohan Bose

U.N. Bhachawat, J.—This is a revision petition u/s 115 of the CPC (hereinafter referred to as the Code) arising out of the order dated 22-7-1974 in the Civil Original Suit No. 28-A of 1972 of the Third Additional District Judge, Gwalior, whereby the trial of the suit has been stayed till the decision of Civil Original Suit No. 26-A of 1972, pending in his Court.

The material facts, briefly stated, essential for the decision of the question in controversy are these; The applicant has filed this suit No. 28-A of 1972 (hereinafter referred to as the present suit) against the non-applicant for his ejectment from House No. 34/3 (hereinafter referred to as the disputed property) and recovery of arrears of rent on 20-11-1974 on the basis of contract of tenancy. The applicant has, in her suit, alleged that she has purchased the disputed property vide registered sale-deed, dated 25-9-1967 and is in possession of it since then; that the non-applicant is occupying the suit property as a tenant from 1-12-1969 at a rent of Rs. 225/- per month, acknowledging which he has executed a rent note in favour of the applicant on 5-12-1969; that the non-applicant is in arrears of rent since 1-12-1969; that the tenancy of the non-applicant has been terminated by a registered notice dated 4-10-1971 since 5-12-1971, but the non-applicant has failed and neglected to vacate the disputed property and also to pay the arrears of rent.

The non-applicant has in his written statement, dated 15-3-1974, controverted the plaint allegations and has contended that he is the owner of the disputed property which has in fact, been mortgaged with Kunjilal Verma, the son of the applicant for Rs. 10,000/-; but at the desire of the said Kunjilal Verma, a sale-deed instead of a mortgage-deed was executed in favour of the applicant and the applicant and Kunjilal Verma both simultaneously, with the sale-deed, executed an agreement to reconvey the disputed property for the sum of Rs. 10,000/- plus interest thereon at the rate of 2% per month within three years; and that the non-applicant is continuing in possession as the owner of the disputed property, It is further alleged that as it was not possible for the non-applicant to repay Rs. 10,000/- with the accrued interest within the stipulated period, on 4-6-1970, another agreement was executed by the applicant in favour of the non-applicant according to which the applicant had agreed to reconvey the disputed property by a registered sale-deed against a sun of Rs. 18,500/- to the non-applicant within period of two years from that date; that there was no contract of tenancy between the applicant and the non-applicant, the non-applicant has been in possession of the disputed property in part-performance of the aforesaid contract as an owner.

In short, the case of the non-applicant is that in fact the house was not sold by him, but was mortgaged with the applicant who is a benamidar for her son Kunjilal Verma and no relationship of landlord and tenant ever existed between the parties to the present suit.

At this stage, it would be relevant to mention that the non-applicant and one Subhash Chandra Sharma have already filed a suit which is registered at No. 26-A of 1972 (hereinafter referred to as the previous suit) in the very Court in which the present suit is filed against the applicant and her son Kunjilal Verma for specific performance of the alleged contract dated 4-6-1970 referred to hereinabove in paragraph 3. The allegations in the plaint in the previous suit on the question of title are more or less similar to those which are made in the written statement of the non-applicant in the present suit with one more specific averment that the agreed interest 2% per month was to be paid in the disguise of rent. To quote :-

On 14-2-1974 in the present suit before the framing of the issues, non-applicant filed an application purporting to be u/s 10 of the Code on the ground that the issues in the present suit would be identical to the issues in the previous suit and the decision on the issues in that suit would operate as res-judicata in the present suit.

The trial Court allowed the aforesaid application and stayed the trial of the present suit. It is against this order that the present revision is filed

Section 10 of the Code reads thus :-

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.

Explanation..................

On analysis, it becomes evident that this Section would come into play only when following facts are found to exist;-

(i) The matter in issue in both the suits are directly and substantially the same.

(ii) The previously instituted suit is either pending in the same Court in which the subsequent suit is brought, or in a different court in India which has jurisdiction to grant the relief claimed, or in Court established or continued by the Central Government and having like jurisdiction or before the Supreme Court.

(iii) Both the suits are either between the same parties or between parties under whom they or any of them claim.

(iv) Such parties are litigating in both the suits under the same title.

During the course of argument, the learned counsel for the applicant has raised only one contention that the matter in issue in the previous and the present suit is directly and substantially not the same.

To determine this question, it has first to be examined how the issues arise or framed in a suit and for this recourse has to be made to Order 14, rule 1 of the Code ; the relevant portion whereof, which calls for consideration for the purpose of this case is set out below :-

Order 14, rule 1 (1), (2) and (3)-"(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue.

On a plain reading of the forequoted provision (Order 14, rule 1) it is transparently clear that issues in a suit are not to be framed regarding every proposition of fact or law which is affirmed by one party and denied by the other, but regarding only material propositions and the rule also indicates that material propositions are those which a plaintiff must allege in order to constitute his defence for the negation of plaintiff''s right. At this stage, it would be pertinent to refer to Order 6, rule 2 of the Code which reads thus :

Order 6, rule 2.-Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures.

According to this rule, a party to the suit is required to plead facta probanda and not facta probantia. Thus, what is obtainable from the aforesaid provisions (Order 14, rule I and Order 6, rule 2) is that only those facts the proof or disproof matter in issue. It is in the light of the aforesaid discussion that the expression "the matter in issue is also directly and substantially in issue" in section 10 of the Code has to be construed. The words "directly, and substantially in issue in the previous suit "further warrants a conclusion that the matter in issue in the subsequent suit should not only be directly, but should be substantially in issue which means that it must be necessary for the decision of the previously instituted suit. The same is the view taken by this Court in AIR 1947 154 (Nagpur) and in Sakhawatrai v. Prem Narain 1962 JLJ 371. The relevant observations from these decisions are reproduced below :-

AIR 1947 154 (Nagpur) The section nowhere states that the subject-matter of both the suits must be the same, and in a Calcutta case reported in Jinnat Bibi Vs. Howrah Jute Mill Co. Ltd., . It was clearly pointed out that the section makes no reference to the subject-matter or the cause of action and that the test of the applicability of S. 10 to a particular case is whether on a final decision being reached in the previous suit such decision would operate as res judicata in the subsequent suit. If in the previously instituted suit it is held that this lease called in question is bogus and is intended to secure interest only that decision is bound to be res judicata between the parties, inasmuch as this point was raised by the present defendant (applicant) and decision thereof was necessary to grant relief to the plaintiff in that suit. This lease was considered as one of the surrounding circumstances in deciding the question whether the transaction was that of a sale or a mortgage by conditional sale. As the nature of this transaction has bearing on the interpretation of the sale and is under consideration in the previous suit and the same point is involved in the present suit, I hold that the case falls within S. 10. Civil P. C. and that the trial of the present suit ought to be stayed till the result of the second appeal pending in High Court. I, therefore, set aside the order of the Court below and order that the suit be stayed till the decision of the second appeal. Application for revision is allowed with costs. Pleader''s fee Rs. 10.

(Emphasis supplied by me).

1962 J.L.J. 371 : 8. ***Assuming that that issue is common in both the suits, it does not necessarily attract section 10 of the Code of Civil Procedure. That section comes into play when there is substantial identity of matters in controversy. The very language of the section 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.

(Emphasis supplied by me).

Bearing the aforequoted discussion in mind, the case at hand has to be examined. In the present suit, the suit is based on the contract of tenancy, wherein the material issue on which the decision would rest would be whether there was a contract of tenancy between the applicant and the non-applicant. In a suit based on the contract of tenancy neither it is necessary nor it is permissible to decide the question of title.

In the previous suit which is a suit for the specific performance of the alleged contract of reconveyance, the material issue would be about the existence of that contract and its enforceability. The question in what capacity the plaintiff in that suit, i.e. the non-applicant herein is in possession of the suit premises is neither of any relevance or significance. Further, in that suit, the contract of tenancy is not directly and substantially in issue as is in the present suit. All what has been said in that suit is that the interest which was to be paid as per the terms of the alleged contract was to be paid in the disguise of rent.

In the aforesaid set of circumstances, the trial of the present suit should not have been stayed. I am fortified in my view by a decision in Lekhraj Diddi Vs. Sawan Singh, . The relevant observations along with the brief statement of facts as contained therein, are set out below :-

The facts of the case in brief, are that the applicant Sardar Sawan Singh had obtained a registered sale-deed for a consideration of Rs. 40,000 from Lekhraj Diddi, the non-applicant. It was alleged that the premises so purchased were given to the non-applicant on rent. The non-applicant, however, committed default in payment of rent hence the applicant filed the suit for ejectment of the non-applicant. The non-applicant stated in his written statement that the sale deed was nominal and was not to be acted upon. The amount alleged to have been paid towards rent was as a matter of fact, paid towards interest on the amount of Rs. 40.000 which the non-applicant had borrowed from the applicant. In other words the plea was that the non-applicant was not the tenant of the applicant and was not, therefore, liable to be ejected. The abovesaid pleas were contained in paragraphs 3, 4 and 5 of the written statement. On these pleadings, necessary issues were framed. Issues Nos. 3 to 5 refer to the abovesaid pleadings of the non-applicant. On 23-12-1969 an application under O. 14, R. 1, Civil P. C. was filed on behalf of the applicant to the effect that issues Nos. 3 to 5 should not be tried as they were irrelevant. That application was, however, rejected by the trial Court by its order dated 9-1-1970 on the ground that the issues were framed on the basis of the pleadings in the written statement and so long as the pleadings were not struck off, the issues also could not be omitted. After this, an application under O. 6, R. 16. Civil P. C. was filed by the applicant on 10-1-1970 for striking out all references in the written statement questioning the title of the applicant, as the plea about title was foreign to the suit between the landlord and tenant. In paragraph 5 of the application, the portions to be struck off in paragraph 3, 4 and 5 of the written statement have been specifically mentioned. That application was dismissed by the trial Court, by its order dated 31-1-1970. Civil Revision Nos. 203 of 1970 and 204 of 1970 are against the abovesaid two orders. It was held by the trial Court that inasmuch as the defendant had denied the tenancy, the pleadings setting up his own title were necessary to show that he could not have become the tenant of the plaintiff.

At this stage, it may be mentioned that the non-applicant had also filed a suit for declaration that the sale deed in question was not to be acted upon and thus passed no title to the applicant As the suit filed by the non-applicant was a previously instituted suit as it was alleged that common issues were involved in both the suits, the non-applicant had filed an application u/s 10 of the CPC for staying the suit filed by the applicant till the disposal of the previous suit filed by the non-applicant. That application was also rejected by the trial Court. The non-applicant has, therefore, preferred Civil Revision No. 168 of 1970......

...In this case, the earlier Suit No. 9-A of 1969, was filed by Lekhraj Diddi. The reliefs claimed in that suit relates only to the sale deed dated December 6, 1963. No relief has been claimed in respect of the alleged contract of tenancy. Indeed, there is in the plaint no reference to that contract of tenancy and all that is said is that interest "was to be paid in the disguise of rent". It is obvious that the question whether or not there was a contract of tenancy is not directly and substantially in issue in this suit and, as we would show in the sequel, that is the only controversial question directly and substantially in issue in the subsequent suit No 16-A of 1969, filed by Sawan Singh for ejectment and arrears of rent. In these circumstances section 10 of the CPC has no application and the Additional District Judge, Jabalpur, rightly declined to stay the subsequently instituted suit. This revision No. 168 of 1970, therefore, fails.

In Civil suit No- 16-A of 1969 subsequently filed for ejectment and arrears of rent, Lekhraj Diddi denied the contract of tenancy and pleaded inter alia that the sale deed dated December 6, 1963 was a nominal document that the transaction was one of loan and the amount of Rs. 400/-every month was really interest on the loan of Rupees 40,000/- advanced on the occasion. It is well settled that in a suit for ejectment and arrears of rent the basis of the claim is the contract of tenancy. That being so, when as in the case, the suit is between the original parties to that contract and there has been no transfer of title of the lessor, the question of title of the landlord is outside the scope of the suit....

The reason is obvious. If the tenant admits the contract of tenancy but denies the title of the landlord, the denial, besides being not open to the tenant in the sense contemplated by section 116 of the evidence Act, is not relevant. On the other hand, if the tenant denies the contract of tenancy but admits the title of the landlord, the latter cannot rely for his success on the admission of his title and is not relieved of the obligation of establishing the contract of tenancy. It follows that in such cases, the only question directly and substantially in issue is the contract of tenancy. That is not to say that the existence of title has no bearing on the question of tenancy, If it be dispused. So, in 28 MPLC 338 : AIR 1943 Nag 265 (Supra) Grover, J. observed :-

The evidence about the nature of the sale deed was relevant on the question of the existence or non-existence of the oral lease u/s 11 (2), Evidence Act, If the sale be proved to be genuine, that tact coupled with the continued possession of the vendor would make the oral lease more probable. If, on the other hand, the sale deed were bogus, it might be argued either that there was no oral lease at all or that if there was a show of an oral lease it too was bogus.(P.266)

Similar observations were made in Civil Revn. No. 679 of 1966, D/- 30-8-1967 (M.P.) (Supra) and it was stated ;-

In a suit founded of relationship of landlord and tenant; where the tenant denies that such relationship was brought about, the burden is on the plaintiff to establish the alleged relationship. The defendant is entitled to rebut it and show that the transaction which purports to be one creating relationship of landlord and tenant was other than what appears on its face, This does not amount to converting the suit into one relating to title, because no declaration of the defendant''s title or the non-existence of the plaintiff''s title will be made in the suit. But if the defendant succeeds in his plea, it will be held that he is not the plaintiff''s tenant and on that basis the suit will be dismissed.

These two cases rightly point out that in a case like the one here evidence about title of the lessor is a relevant fact for proof or disproof of the disputed contract of tenancy but any averment of existence or non-existence of title is not a material fact that can be tried in the suit, no issue ought to be framed in regard to it and any finding recorded in relation to it will be outside the scope of the suit. As we have already indicated, the law laid down in these cases does not require reconsideration.

The trial Court has relied on a decision of this Court in Moharsingh v. Shahzad Beg (Civil Revision No. 296 of 1967, decided on 1-9-1969). But that decision cannot be pressed into service, because it is based on the premises that in the subsequently instituted suit, which was based on the relationship of landlord and tenant, the relationship of land lord-tenant was dependable on the question of title which was involved in the previously instituted suit and, therefore, the decision in the previously instituted suit on the question of title would operate as res judicata in the subsequently instituted suit. This would be evident from below-quoted observations from that case :-

It is further to be noted, as laid down by their Lordships of the Supreme Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, that the provisions of S. 10, C.P.C. are mandatory and there would be no question of any discretion being exercised by the Court in that behalf.

Applying the tests as laid down by Lordships in the said case, it is pertinent to note that the relationship of landlord and tenant would depend on the question of title involved in the earlier instituted suit and if the petitioner succeeds in his suit for specific performance of the contract of sale, the suit for eviction filed by the respondent can evidently not succeed. It is not necessary that there should be complete identity of the questions involved in both the suits. But a substantial identity would be enough. In this connection, I may refer to the pronouncement of Puranik, J. in Krishnarao v. Shridhar 36 MPLC 55 : ILR 1947 Nag. 141 and of Padhye J. in Laxmi Bank Ltd., v. Harikishan and another.

In the instant case, as is evident from the foregoing discussion, such is not the situation. The matter directly and substantially in issue in both the cases is not the same.

As a result of the foregoing discussion, in my opinion, the trial Court has acted with material irregularity in staying the present suit till the decision of the previous suit and the revision petition, therefore, deserves to be allowed.

The revision petition is, therefore, allowed. I make no order as to costs.