Dismissed

Md Naiyyar Jamal Alias Munka v. Ajay Kumar

Jharkhand HC12 Jul 2019WPC/5782/2016

Case brief

AI extract

What is this about?

The Single Judge dismissed five writ petitions in eviction disputes. The Court held that Section 10 of CPC (Stay of suit) did not apply because the Title Suit and Eviction Suit had different reliefs, different parties, and the matters were not directly and substantially in issue. Consequently, no res judicata arose and no interference under Article 227 was warranted.

What did the court decide?

The writ petitions were dismissed as they were not maintainable since Section 10 of CPC was inapplicable.

Md Naiyyar Jamal Alias Munka Vs Ajay Kumar — Property and Title | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (C) No. 2883 of 2017

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-----

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Anil Kumar Mahato ... Petitioner/Defendant Vs. Ajay Kumar .… … Respondent/Plaintiff

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----with

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W.P. (C) No. 5782 of 2016

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-----

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Md. Naiyyar Jamal @ Munka... Petitioner Vs. Ajay Kumar .… Respondent

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----with W.P. (C) No. 5788 of 2016

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----- Md. Gayasuddin .. Petitioner Vs. Ajay Kumar .… Respondent

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----with

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W.P. (C) No. 5794 of 2016

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-----

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Md. Idris @ Idrish Ansari ... Petitioner Vs. Ajay Kumar .… Respondent

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----with W.P. (C) No. 5802 of 2016

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Md. Abidullah ... Petitioner Vs. Ajay Kumar .… Respondent -----

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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----- For the Petitioner : Mr. Sanjeev Thakur, Advocate For the Respondents : Ms. Vandana Singh, Advocate ----- Order No. 07 : Dated 12th July, 2019

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These writ petitions have been ordered to be heard together and are being heard together and accordingly, they are being disposed of by this common order.

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2. The relief sought for in these writ petitions is for setting aside the order dated 12.01.2017 passed in Title (Eviction) Suit

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No. 02 of 2006 (subject matter of W.P. (C) No. 2883 of 2017); order dated 23.06.2016 passed in Title (Eviction) Suit No. 04 of 2006 (subject matter of W.P. (C) No. 5782 of 2016); order dated 23.06.2016 passed in Title (Eviction) Suit No. 05 of 2006 (subject matter of W.P. (C) No. 5788 of 2016); order dated 23.06.2016 passed in Title (Eviction) Suit No. 06 of 2006 (subject matter of W.P. (C) No. 5794 of 2016) and order dated 23.06.2016 passed in Title (Eviction) Suit No. 03 of 2006 (subject matter of W.P. (C) No. 5802 of 2016), by which, the petition filed under Section 10 of the Code of Civil Procedure read with Section 151 of the Code of Civil Procedure has been rejected.

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3. The brief facts of the case, as per the pleadings made in the writ petitions, is that the respondent has filed Title Suit against original defendant under Section 11 of the Jharkhand Building (Lease, Rent & Eviction) Control Act, 2011 , in which, the defendants/ petitioners have appeared and are contesting the suits against the ejectment from the premises in question by filing written statement therein denying the title of the plaintiff and claimed that one Baijnath Singh as his real owner and he is paying rent to one Chandrashekhar Singh, S/o Baijnath Singh regularly, who is the original landlord and who has filed Title Suit being Title Suit No. 26 of 2005 under Section 22 of the Hindu Succession Act claiming his right over the suit property as said Baijnath Singh is one of the co-sharer of the property in question, which has wrongly been

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transferred in the name of the plaintiff of the case and the case is still pending before the competent Court.

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4. In such background, petition under Section 10 of Code of Civil Procedure has been filed for stay of the proceeding pertaining to respective Title Eviction Suits. Rejoinder to the petition has been filed raising the maintainability of the petition filed under Section 10 of the Code of Civil Procedure and after having heard the parties, orders have been passed, which are impugned in these writ petitions.

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5. Mr. Sanjeev Thakur, learned counsel for the petitioners has submitted that the trial Court while rejecting the petition under Section 10 of the Code or Civil Procedure has committed gross illegality by not appreciating the legal position of applicability of Section 10 of the Code of Civil Procedure since according to him when two suits are going on then the previous suit would be allowed to continue and as because the Title Suit has been filed prior to Eviction Suit, therefore, the Eviction Suit ought to have been stayed since the essence of both the suits are same.

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6. Ms. Vandana Singh, learned counsel for the respondent has seriously objected to the submission and ground urged by learned counsel for the petitioner by submitting that Section 10 of the Code of Civil Procedure is applicable only when the matter in issue is directly and substantially in issue in the previously instituted suit between the same parties but herein the issues in both the suits are not directly or substantially in

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issue since the Title Suit is for declaration of the right and title whereas the Eviction Suit is for eviction and, therefore, in both the cases two different issues are to be contested and answered by the competent Court of jurisdiction.

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7. After having heard learned counsel for the parties and after appreciating their rival submissions, this Court deems it fit and proper before going into the legality and propriety of the impugned orders to go through the provision of Section 10 of the Code of Civil Procedure, which reads as under:

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“10.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.”

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8. It is evident from the provision as contained under Section 10 of Code of Civil Procedure, the underlying provision of the said provision is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue and 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.

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9. The fundamental test to attract Section 10 of the Code of Civil Procedure is, whether on final decision being reached

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in the previously instituted suit, such decision would operate as res judicata in the subsequent suit.

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10. This aspect of the matter has elaborately been dealt with by Hon'ble the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara as reported in AIR 2005 Supreme Court 242 .

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11. It is, thus, evident that while dealing with the application under Section 10 of the Code of Civil Procedure, the rationale test is as to whether on final decision being reached in the previously instituted suit, such decision would would operate as res judicata.

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12. The Hon'ble Supreme Court in the case of Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor as reported in AIR 2013 Superme Court 1712 has been pleased to dealt with the scope of Section 10 of Code of Civil Procedure. For ready reference, the relevant paragraph 11 of the said decision is reproduce herein below:

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“ 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

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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 v. C. Parameshwara, (2005) 2 SCC 256 : (AIR 2005 SC 242 : 2004 AIR SCW 6900) in which it has been held as follows:

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"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 subjectmatter in both the proceedings is identical."

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13. In the judgment of Aspi Jal (supra) , reference of decision rendered in the case of National Institute of Mental Health & Neuro Sciences (supra) has also been mentioned.

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14. The Hon'ble the Apex Court in the case of Lachaman

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Nepak & Ors Vs. Badankayalu Syama Babu Subudhi &

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Anr as reported in AIR 1989 Orissa 154, at paragraph 6 held as under:

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“ 6 .I do not find any substance in the submission of Mr.Mohanty. Undisputedly, the petitioners do not have any semblance of title to the suit premises. It is an admitted fact that GovindaNepak was occupying the premises as a tenant of KasinathSubudhi who transferred his right, title and interest in the premises in favour of O.P.I. It is no doubt true that GovindaNepak instituted a Title Suit for specific performance of the oral agreement between him and KasinathSubudhi claiming to have been entered prior to the execution of the sale deed in favour of O.P.1. It is elementary that until the plaintiff succeeds in the Title Suit leading to the execution of the sale deed in his favour, he cannot claim any title or even any semblance of interest therein. It is well settled that existence of an agreement for sale does not of itself create any interest in or charge on such property. S.54 of the T.P. Act itself has specifically made the position beyond the pale of any doubt, the relevant portion of which reads as follows : - "54..........................

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A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."

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The mode of transfer of any immovable property is also well known which may be made either by registered instrument or by delivery of possession. Property does not pass on to the transferee until its registration is effected. By reason of S.47 of the Registration Act, title can relate back not beyond the date of the execution of the sale deed for the purposes of priority, on

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effecting the registration. It is no doubt true that the findings recorded in the eviction proceeding by the House Rent Controller would work as res judicata in view of the newly added Explanation-VII to S.11 of the Civil P.C. as held by me recently in the case of Bijay Kumar v. Durgabai Sharma Civil Revn. No. 853 of 1986 disposed of on 28-9-1988 sitting in a Division Bench. The rigour of res judicata on the facts and in the circumstances mentioned above is not likely to work any prejudice or hardship to the petitioners in their civil action for specific performance of their contract for sale as in that case the title of the present landlord would be defeated by acquisition of a title paramount by the plaintiff. But on that account, they cannot deny the title of the rival purchaser (O.P.1) until that eventuality takes place. In that view of the matter, I have got no doubt in my mind to hold that the grounds pressed into service by the petitioners for staying the disposal of the eviction appeal are baseless.”

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15. The Hon'ble Apex Court further in the case of Dr. N.P. Tripathi Vs. Smt Dayamanti Devi & Anr as reported in AIR 1988 Patna 123 at paragraph 6 held as under:

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“ 6 .It is admitted, as already noticed above, that the petitioner was in possession of the property as a tenant of the plaintiff opposite parties in this suit. But in order to forestall such a claim of eviction an earlier suit may well have been filed in the shape of a suit for specific performance of contract. That cannot, in law, enable or entitle the petitioner to say that after the execution of the alleged deed of agreement for sale he continued to remain in possession not qua tenant but dehors the tenancy in his own right as a transferee. Merely by institution of a suit for a specific performance of contract or, for that matter, that by agreement of sale, can it lie in the mouth of the petitioner to say that he is remaining in possession of the premises inducted upon it by the plaintiff opposite parties who were admittedly the owners thereof and to whom the petitioner had attorned that he had acquired title merely by entering into a deed of agreement for sale. Can it be said that he became the owner of the property and no longer remained a tenant irrespective of the fact that no title deed (sale

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deed) has been executed in his favour ? Therefore, it is manifest that the matter directly and substantially in issue in the two suits are not the same. The question of attracting the provisions of S.10 of the Code, therefore, does not arise at all because the matter is not even indirectly, what to talk of directly and substantially, in issue in both the suits.”

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16. It is evident from the aforesaid judgments that the Hon'ble Apex Court has been pleased to clarify more precisely before exercising power conferred under Section 10 of the Code of Civil Procedure that the application filed under Section 10 by asking that can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed.

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17. In the backdrop of this legal position, supported by authoritative pronouncements of the Hon'ble Supreme Court, the factual aspect which is not in dispute in this case is that the petitioners, who are the tenants/defendants in the Eviction Suit and for evicting them the respondents/plaintiff of Eviction Suit have brought the suit for eviction from the property, the shop room, according to plaintiff was inducted as a monthly tenant of shops. While defendants claim is that they are not the tenants of the respondents rather they are tenant of Baijnath Singh, who has filed Title Suit for right and title over the suit property being Title Suit No. 26 of 2005 against the plaintiff of Eviction Suit, who is respondent herein and, therefore, the issues involved in Title Eviction Suits and Title Suit No. 26 of 2005 are substantially same. But he never has referred in the said petition, filed under Section 10 read with Section 151 of the Code of Civil Procedure, that how issue is

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directly and substantially in issue in a previously instituted suit, if contested would operate as res judicata in the subsequent suit.

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18. It cannot be disputed that if any decree is passed in the Eviction Suit the same would be for evicting the plaintiff while the decree is passed in the Title Suit, the same would be declaratory in nature declaring right and title of the parties. Therefore, the scope and purpose of filing Eviction Suit and the declaratory suit is on two different directions and even if any decree would be passed in Eviction Suit it will not create any res judicata. Further, the Eviction Suit is in between the respondent, who is the plaintiff in Eviction Suit and the petitioners, who are the defendants in the Eviction suit whereas in the Title Suit, the respondent herein is the defendant and one Baijnath Singh is the plaintiff. Therefore, parties are also not same and in that view of the matter, the petition under Section 10 of Code of Civil Procedure is not applicable herein.

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19. This Court, therefore, by going across the factual aspect, as discussed herein above, is of the view, that the finding recorded by the trial Court in the impugned orders suffers from no infirmity since the trial Court has considered the very scope of Section 10 of the Code of Civil Procudure and going across as narrated herein above, has come to a finding that it is not a case where petition filed under Section 10 of the Code of Civil Procedure appears to be applicable.

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20. In that view of the matter, according to considered view of this Court, this case is not such a nature of case where any interference is warranted by this Court under Article 227 of the Constitution of India.

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21. In view thereof, writ petitions fail and are dismissed.

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(Sujit Narayan Prasad, J.)

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Alankar/-

Md Naiyyar Jamal Alias Munka v. Ajay Kumar

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Md Naiyyar Jamal Alias Munka v. Ajay Kumar

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