IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1588 of 2006 SMT.SHYAM AGRAWAL Versus SMT.KRISHNA DEVI & ANR ------- For the petitioner: Mr. V. Nath Mr. Ashok Kumar Mr. Satish Kumar For the Opposite Parties : Mr. Anish Chandra Sinha ******** 9. 05.09.2008 Heard the counsel for the petitioner and the counsel appearing for the Opposite Parties. Petitioner is defendant in Eviction Suit No. 02/05 which has been filed by the plaintiffs/Opposite Parties for eviction and arrears of rent with regard to the premises, a shop described in schedule-I of the plaint. This application has been filed for quashing the order dated 07.08.2006 passed by First Sub-Judge, Arrah in Eviction Suit No. 02/05 whereby the petition filed by the defendant/petitioner u/S 10 of the Code of Civil Procedure for stay of the proceeding of the suit has been rejected. Admitted facts of the case are that defendant was inducted by the plaintiffs in the suit premises for a fixed term tenancy for six years starting from 02/09/1993, by executing a deed of lease on monthly rental of Rs 700/-. The period of lease was to expire on 02/09/1999 and as per the terms and conditions enumerated in the lease deed, the defendant had to 2 deliver vacant possession of the suit premises to the lessor/plaintiffs. Since the defendant failed to vacate the suit premises, plaintiffs filed Miscellaneous Case No. 02 of 2000 u/S 18 of Bihar Building (Lease, Rent and Eviction) Control Act (hereinafter referred as B.B.C. Act) for eviction of the defendant under the provisions of Section 18(3) of the B.B.C. Act. The Opposite Party/petitioner contested the claim of the plaintiff stating that at the time of execution of lease, the defendant had paid Rs 79,500/- through three cheques of State Bank of India branch, Nawada, Ara and further paid Rs 80,000/- on 23.08.1993 by way of security. As per the terms in the lease-deed before expiry of the period of lease, the Opposite Party/petitioenr on several occasions, requested the petitioner/opposite party for renewal of lease. He also sent a notice dated 27.07.1999 for renewal of the lease. Considering the fact that nothing was being done by the landlord, he ultimately filed Title Suit No. 39 of 2000 for relief directing renewal of the lease. The suit is pending before Munsif-II, Ara. The defendant/petitioner also filed a petition for analogous trial of both the cases i.e. Misc. Case No. 02 of 2000 and Title Suit No. 39 of 2000. The prayer of the defendant/petitioner was allowed by order dated 03.03.2001 and both the cases were directed to be heard 3 analogous. Petitioner’s case is that the plaintiffs, thereafter, realizing the chance of failure in Misc. Case No. 02 of 2000 filed a petition on 04.03.2003 for withdrawal of Misc. Case No. 02 of 2000. The defendant/petitioner filed his objection to withdrawal petition as it was filed with intention to frustrate the relief prayed for by the petitioner in Title Suit No. 39 of 2000. The case of the defendant/petitioner was that the witnesses have already been examined and they all have supported the case of the defendant, at this stage prayer for withdrawal of Misc. Case No. 02 of 2000 cannot be allowed. The Munsif-II, Ara by order dated 30.07.2004 rejected the prayer of the Opposite Party No. 1 (petitioner of Misc. Case No. 02 of 2000) for withdrawal of Misc. Case. The owner of the premises also filed Amendment Petition as well as Transfer Petition just to delay the disposal of Misc. Case No. 02 of 2000. However, the District Judge by his order dated 07.02.2005 allowed the prayer for transfer of the case and the case was transferred to the court of Additional Munsif-IX, Ara. Amendment Petition was not pressed, as such, it was dismissed. Subsequent to that, the O.P. No.-I (owner of the premises) filed Eviction Suit No. 02 of 2005 for eviction of the petitioner from the said premises and recovery of 4 arrears of rent on the same ground as mentioned in Misc. Case No. 02 of 2000. The defendant/petitioner appeared, filed her written statement and also a petition u/Ss 10 & 151 of the C.P.C. for stay of further proceeding of Eviction Suit No. 02 of 2005 on the ground of pendency of earlier proceeding for eviction in Misc. Case No. 02 of 2000. This petition u/S 10 of the C.P.C. was rejected as such; present Civil Revision Application has been filed. It has been submitted by the petitioner’s counsel that Section 10 of the C.P.C. specifically provides that “No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in previously instituted suit between the same parties, or between the 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.” Provisions of Section 18(3) of B.B.C. Act deals with eviction of tenant on fixed term lease. Section 18(3) provides that if the tenant fails to vacate the building on the termination of tease or on the expiry of the period fixed by the court under Sub-section 2, the court shall pass an order for ejectment on an application by the landlord which shall be executed as a decree. Since the order passed u/S 18(3) of the B.B.C. Act has been given force of a decree as such, no other suit for 5 similar relief can proceed between the same parties for same premises as the order passed in Misc. Case will operate as res-judicata in any subsequent proceeding including subsequently filed Eviction Suit No. 02 of 2005. Since the court below has failed to exercise jurisdiction u/S 10 of the Act ignoring the pendency of Misc. Case No. 02 of 2000, it is a fit case in which the impugned order should be set aside. Counsel appearing for the plaintiffs/O.Ps. has submitted that the Misc. Case No. 02 of 2000 filed u/S 18(3) of the B.B.C. Act , is for eviction on the ground of termination of lease period, whereas Eviction Suit No. 02 of 2005 has been filed on the ground of arrears of rent, as such, the subject matter of both the cases are not same but totally different. The court below has rightly rejected the petition filed u/S 10 of the C.P.C. as Misc. Case No. 02 of 2000 filed u/S 18(3) of the B.B.C. Act is not a suit, on the ground of pendency of Miscellaneous Case, subsequent suit cannot be stayed. This has not been denied by the counsel appearing for the plaintiffs/O.Ps. that any order passed in Misc. Case No. 02 of 2000 will act as res-judicata for the reason that with regard to the same premises, the order either rejecting or allowing eviction will be passed in which the parties are same. It is a fact that an 6 application u/S 18(3) of B.B.C. Act is not a suit but it is well-settled that an order passed u/S 18(3) of the B.B.C. Act is executable as a decree. In case Misc. Case No. 02 of 2000 is allowed and the lessee is directed to vacate the suit premises, the relief prayed for in Eviction Suit No. 02 of 2005 regarding eviction of the tenant will become infructuous. Considering the facts and circumstances and the provisions u/S 10 and 11 of the C.P.C. as well as Section 18(3) of the B.B.C. Act, I find that the impugned order has been passed in erroneous exercise of jurisdiction without considering the legal effect of the continuation of two Misc. proceedings for same relief. Accordingly, the impugned order dated 07.08.2006 passed by First Sub-Judge, Ara in Eviction Suit No. 02 of 2005 is set aside. There is already an order of analogous hearing of Title Suit No. 39 of 2000 and Misc. Case No. 02 of 2000, as such both should be heard analogous and be decided expeditiously. AKV/ ( Mridula Mishra, J )