1 S.B. CIVIL WRIT PETITION NO.4858/2005 Bhagwan Lal & Anr.Vs.Vijay Singh IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER 22.7.2009. S.B. CIVIL WRIT PETITION NO.4858/2005 Bhagwan Lal & Anr. Vs. Vijay Singh HON'BLE MR. JUSTICE DALIP SINGH Shri B.L. Mandhana,for the petitioners. Shri Rajneesh Gupta, for the respondent. Heard learned counsel for the parties. The writ petition has been filed against the order dated 14.5.2005 passed by the learned District Judge, Baran on an application having been filed under Section 10 CPC by the defendant respondent whereby the application was allowed and the proceedings in civil suit No.18/2004pending before the learned District Judge, Baran were stayed till the disposal of the suit No. 15/2001 Bhagwan Vs. Vijay Singh pending before the Addl. Civil Judge (JD), Baran. Heard the learned counsel for the parties. The submission of the learned counsel for the petitioner plaintiff is that in suit No.15/2001 was filed by the plaintiff petitioner against the defendant 2 S.B. CIVIL WRIT PETITION NO.4858/2005 Bhagwan Lal & Anr.Vs.Vijay Singh respondent for eviction and arrears of rent as well as the damages for use and occupation. The eviction suit was filed inter alia on the ground of material operation, nuisance, default in the payment of rent as well as the personal bonafide necessity. The plaint in the first suit which is the suit for eviction has been filed as Annexure-1 to the writ petition. After filing of the first suit for eviction the plaintiff filed his second suit for damages amounting to Rs.94,500/- against the defendant respondent on account of the causing of nuisance by the act of the defendant on account of tying of cattle in the “pol” and “chowk” as well as the gallery in the premises. The case set up by the plaintiff in the second suit is that on account of the tying of the cattle and act of the defendant in keeping fodder and “channas” on the roof and because obstruction in the entry and exit to the house premises of on account of tying of the cattle the plaintiff has had to suffer losses amounting to Rs.3,000/- p.m. as the other occupants have vacated the premises and the the premises has become unsuitable for the occupation by any tenant and so has remained vacant resulting in loss of rent. It is also alleged that the defendant quarrels with the occupants who object to tying of the cattle and obstructing the passage and keeping of 3 S.B. CIVIL WRIT PETITION NO.4858/2005 Bhagwan Lal & Anr.Vs.Vijay Singh fodder and channas ”on the roof”. As a result of this the plaintiff has sought damages for loss of earning. In the application submitted by the defendant under Section 10 CPC it was contended that in both the suits the subject matter was the same and relates to the act of causing nuisance which was denied by the defendant and therefore the subsequent suit filed by the plaintiff in terms of Section 10 CPC deserves to be stayed. I have considered the above submissions and gone through the record of the writ petition. No doubt in both the suits the question involved would be with regard to the tying of the cattle and causing nuisance. However the matter in issue in the two suits to my mind is quite distinguishable and different. So far as the earlier suit No.15/2001 is concerned the same relates to relief of eviction and arrears of rent as well as the damages for use and occupation for the area which was not let out to the defendant. As against the aforesaid the relief in the subsequent suit filed in the year 2004 is for damages on account of the loss of earning caused to the plaintiff as a result of the act of the defendant due to which the premises have remained vacant as 4 S.B. CIVIL WRIT PETITION NO.4858/2005 Bhagwan Lal & Anr.Vs.Vijay Singh no one is prepared to take the same on rent on account of the act of the defendant and his behaviour with other occupants and tenants. As a result of the aforesaid the case of the plaintiff is that the plaintiff has to suffer damages on account of the premises having became incapable of being let out and remaining vacant. The cause of action as per the plaint submitted on record, for the two suits are different and separate. In the facts and circumstances therefore I am of the view that so far as the provision under Section 10 CPC are concerned they are not attracted in the present case as the subject matter of the two suits one being for eviction of the tenant and other being for awarding damages on account of the acts of omission and commissions caused by the defendant tenant. I am therefore inclined to accept this writ petition and set aside the impugned order dated 15.4.2005. This writ petition as well as the stay application are accordingly disposed of. (DALIP SINGH),J. Ramchandrkhatri,PS