l^ HIGH COURT OF CHHATTISGARH AT BILASPUR W.P. C227)No. 3054 of2009 Smt Kesharbai Agrawal & Others Vs. Smt Mani Jain & Others Post of pronouncement ofjudgment and orders on &- /07/2009. Sd/- N.K. Agarwal Judge 's^^^^^.. HIGH COURT OF OfflATTISGARH AT BILASPUR Petationers Defendants W.P. (227)No. 3054 of2009 : ' 1. 8mt. Kesharbai Agrawal, aged about 65 years, widow of late Fattechand Agrawal, Choudhary Mohalla, Mangali Bazar, Pendra Road, District Bilaspur (CG). 2. Suresh Agrawal, aged about 50 years, son of late Fattechaxid Ag^awal, Choudhary Mohalla, Mangali Bazar, Pendra Road, District Bilaspur (CG). 3» RaJkumar Agrawal, aged about 48 years, son oflate Fattechand Agrawal, Choudhary Mohalla, Mangali Ba2ar, Pendra Road; Distorict Bilaspur (CG). 4, Subhash Agrawal, aged about 46 years, son of late Fattechand Agrawal, Choudhary Mohalla, Mangali Bazar, Pendra Road, District Bilaspur (CG). 5. Smt. Geeta Agrawal^ widow of Shri Ashok Agrawal, aged about 36 years. 6. Gagan Agrawal, son of late Shri Ashok Agrawal, aged about 21 years. 7. Govind Agrawal, son of late Shri Ashok Agrawal, aged about 19 years. Petitioners No. 5 to 7 are R/o Choudhary Mohalla, Mangali Bazar, Pendra Road, District Bilaspur (CG). 8. Manoj Agrawal @ Yadu, aged about 42 years, son of late Fattechand AgrawaL Gopal Hardware, Amarkantak Road, Pendra Road, District Bilaspur (CG). 9. Rajesh Agrawal; aged about 36 years, son of late Fattechand Agrawal, Chhattisgarh Scientific & Surgical Respondents Plamtiffs Defendant No. 2 DefendantNo.3 DefendantNo.4 Works, Brihaspati Bazar, Bilaspur (CG). 10.8mt Maya Agrawal aged about 41 years, wife of Shri Amar Agrawal, Grihani Stores; Putrishala Road; Kharsiya, District Raigarh (CG). ll.Stnt Mamta Goyal, aged about 38 years; wife of Shri Tarachand Goyal; Anand Rice Mill, Raipur Road, Dhamtari, District Dhmntari (CG). Versus 1, Smt. Mani Jain, aged about 41 years, D/o late Shri Premchand Jain, Pneumatic, Govemment Mental Hospital, Indore acting fhough amicus curie Rajkumar Jain, aged about 40 years, son of late Shri Komalchand Jain, R/o Pendra, Tehsil Pendra Road, Distdct Bilaspur (CG). 2. Ratanchand Jain, aged about 61 years, son of late Shri Bhaiyyalal Jain, Businessman, R/o Pendra Road, Tahsil Pendra Road, District Bilaspur (CG). 3. Rajkumar Jain, aged about 40 years, son of late Shri Komalchand Jain, R/o Pendra Road, Tahsil Pendra Road, District Bilaspur (CG). 4. Dr. Nemchand Jain, aged about 70 years, son oflate Shri Bhaiyyalal Jain, R/o Char-A-Ankur, 10 Lord Sinha Road, Calcutta. 5. Shri Sumerchand Jain aged about 65 years, son oflate Shri Bhaiyyalal Jam, Retired Worker, resident ofBengalore. 6. Shri Vimal Kumar Jain, aged about 45 years, son of late Shri Komalchand Jain, Businessman, R/o Pendra Tehsil Pendra Road, District Bilaspur (CG). DefendantNo. 5 7. Shri Ajit Kumar Jain, aged about 35 years, son of late Shri Komalchand Jain, Businessman, R/o Pendra Tehsil Pendra Road, District Bilaspur (CG). Writ Petition under Article 227 ofthe Constitution oflndia tSinsle Bench: Hon'ble Mr. N.K. Aearwal, J.) Present : Shri K.A Ansari; Sr. Advocate with Shri S.A. Ansari, Advocate for fhe petitioners. Shri Sanjay K. Agrawal with Shri P.R. Patankar, Advocates for the respondent No. 2. ORDER CPassed on ^L day ofJuly, 2009) 1. The instant petition is directed against the order dated 07.03.2(X)9, passed by Civil Judge, Class I-, Pendra Road, Distt. Bilaspur, in civil suit No. l-A/01, whereby and whereunder the application filed by fhe defendants/petitioners herein under Section 10 read with Section 151 ofCPC for staying fhe suit has been dismissed. 2. The brieffacts ofthe case are that, one Kusum Devi wife ofSuresh Agrawal instituted a civil suit being civil suit No- 7A/99 in the year 1996 in the court of IVth Additional Di^rict Judge, Bilaspur^ against Smt. Mani Jain and Ratanchand Jain (Respondent No. 1 & 2 herein), claiming the relief of specific perfbrmance of contract valued at Rs. 3 Laldi and also for declaration to declare the judgment and decree dated 13.07.89, passed bythe IVth Additional District Judge, Bilaspur, in civil suit No. 228-A/89, as invalid and also for the relief of declaration declaring fhe agreement dated 02.05.95 between Ratanchand Jain and late Premchand Jain as invalid and ineffective which is pending consideration. /G. „ J h '^sy Thereafter, in the year 1998 a civil suit No. l-A/01 is filed by the plaintifFrespondent No. 1 to 3 herein, against the petitioners and respondent No. 4 to 7 herein, for eviction and arrears ofrent valued at Rs. 35,000/- in fhe court of Civil Judge, Class-I, Pendra Road, Distt. Bilaspur, That, the suit property involved in fhe earlier suit is whole suit house as described in the schedule of the said suit as per plaint allegation (Amiexure P/6), whereas, in tihie suit filed in the year 1998 is for eviction, and arrears ofrent, the suit property involved is a portion ofthe house as described in tfie schedule involved in fhe earlier suit. Shri Ansari, leamed senior counsel appearing for the petitioners submits fhat the matter in issue in the instant suit is also directly and substantially in issue in the previous suit, both the suits are between the same parties litigating under the same title and therefore, the instant suit is liable to be stayed till decision of earlier suit and fhe trial court grossly erred in dismissing the application ofthe petitioners under Section 10 read with Section 151 ofCPC. hi support ofhis submission, he placed reliance upon the followingjudgments: i. Mahangu Prasad Sah v. Prayag Sah (AIR 1975 Gauhati 40) ii. Indian Express v. Basumati Pvt. Ltd. (AIR 1969 Bombay 40). iii. Manoher Lal v.Seth Heeralal (AIR 1962 SC 527) iv. Ramdhari Lal v. Devendra Prasad (1961 MPU Note No. 63). v. Wings Pharmaceuticals Ltd. v. Swam Pharmaceuticals (AIR 1999Patna96) vi. National Institute ofMental Healtih and Nem-o Science v. C. Panneshwar (AIR 2005 SC 242) vii. AIR 1966 Calcutta 382. 6. Per contra, Shri Sanjay K. Agrawal, leamed counsel appearing for the respondent No. 2 submits that the subject matter oftwo suits is not identical. Earlier suit is title suit whereas the instant suit is eviction suit under fhe provisions ofC.G. Accommodation Control Act, and therefore, fhe tdal court had rightly dismissed tihie application oflhe petitioners. He furfher submits that even after laps of 11 years, tfae petitioners did not file ^witten statement in the instant suit and therefore, fhe petitioners conduct being not equitable, the petition also deserves to be dismissed on this ground. He further contended that the petitioners cannot mvoke section 10 of CPC as a matter of right. In support of his submission, he placed reliance upon the followingjudgments : i. Laxman Nepak v. Badan Kayalu and Others (AIR 1989 Orissa 154). ii. Gallu Bhawani v. Bhagawalli Rajeshwar Rao (2000 AIHC 438). 7. I have heard the counsel for the parties and pemsed the records and also gone through the judgments cited by both the parties. The core question involved for decision makbig in fhis case is that whether fhe issue involved in the later suit are directly and substantially in issue in the previous suit between the same parties or between the parties under whom they or any of them claim litigating under fhe same tile where such suit is pending in the same or aiiy other court in India having jurisdiction to grant the reliefclaimed. Section 10 ofCPC reads as under: "10. Stay of suit: No court shall proceed with the trial of any suit in which flie matter in issue is also directly and substantially m issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the sanie tile where such suit is pending in the saiiie or aiiy otiher court m India havingjurisdiction to grant fhe relief claimed, or in any court beyond fh^ limits of India ^^•^^9^^., ^^sr'~% i ^sf^^. 1 ^^'^^^^ r;i \^^.J/ established or contmued by the Central Govemment and having likejurisdiction, or before the Supreme Court." 8. A bare perusal ofAnnexure P/6 and P/8 i.e. the copies ofplaint in both fhe suits would reveal; i. Iti both the suits parties are not same. ii. Both the suits are not pending in the same court or in the court having concurrent pecumary jurisdiction, the appeal arising out of tihe decision passed in civil suit No. 7A/99, which was filed in fhe court ofAdditional District Judge, is pending in fhe High Court, and other is pending in fhe court ofCivil Judge Class I. iii. In earlier suit, the relief claimed is specific performance of contract aad declaration, whereas in the later suit, the relief was claimed for eviction and arrears of rent in terms of provisions under C.G. Accommodation Control Act in which the question oftitle not gemiane. iv. The suit property in the previous suit is entire suit house whereas fhe suit property involved in the later suit is a portion ofentire suit house. v» The object of Section 10 is to prevent courts of concurrent jurisdiction jfrom simultaneously trying two parallel suits between fhe same parties in respect of fhe 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 judicate in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in bofh the suite is identical. "^fss:~ 10. The Supreme Court in the matter of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara1, in para 8 observed asunder: "8. The object underlying section 10 is to prevent courts ofconcurrentjurisdiction from simultaneously trying two parallel suits in respect ofthe same matter in issue. The object underlying seetion 10 is to avoid two parallel trials on the same issue by two courts and to avoid recordmg of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. Tlie language of section 10 suggests that it is referable to a suit instituted in the civil court mid it cannot apply to proceedmgs of ofher nature instituted under any other statute. The object ofsection 10 is to prevent courts ofconcurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect oftfie 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 fhe suits is identical. The key words in section 10 are 'the matter in issue is directly aad substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, section 10 would apply oiily ifthei'e is identity ofthe matter in issue in bofh the suits, meaning thereby, that fhe whole of subject matter in bofh the proceedings is identical." The Supreme Court in the matter ofRadha Devi v. Deq> Narayaja Mandal And Ofhers, in para 4 observed as under: "4. After we have heard the leamed counsel for the parties, we are oftiie view fhat the Bihar Rent Act is a special Act providing for speedy disposal of eviction suit on certain grounds enumerated Ifaerein. Under the said Act eviction suit is required to be tried under summary procedure provided under the Act. To succeed in the eviction suit under the Bihar Rent Act fhe landlord is required to prove contract oftenancy between her and the tenant and also the ground on which the eviction is sought. In such a suit the Rent Court is not required to go into fhe serious question of title ofherwise the purpose ofthe Act would stand fihiistrated. In fhe aforesaid 1 2004 AIRSCW 6900 22003(11)SCC759 w view of the matter, we are of fhe view that the courts below were not justified in staying the proceedmgs in the eviction suit." 11. Even by stretch of imagination, it cannot be said that either the subject matter in issue is identical in bofh the suits or the suits are between the same parties, pending consideration before the court of sanie or concurrent jurisdiction. Therefore, I am of the considered opinion that the order passed by the trial court does not sufFer j6-om illegality or irregularity leading to mamfest injustice. 12. This Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refram itself from interfering with the order passed by the Court below, except in such cases where perversity, illegality, irregularity orjurisdictional error is writ large on tfie face of the record, which is not in fhe present case. 13. Accordingly, fhe petition is dismissed. No order asto costs. Sahu Sd/- N.K. Agarwal Judge