1 wp 2773.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2773 OF 2009 A. B. M. Properties Pvt. Ltd., Jalgaon through Director, Omprakash Sitaram Agrawal. .. Petitioner Versus Smt. Kalabai Suresh Palve & others .. Respondents Shri A. S. Bajaj, Advocate for the Petitioner. Shri L. V. Sangit, Advocate for Respondent Nos. 1 to 4 & 6, CORAM : S. V. GANGAPURWALA, J. DATE : 06TH JULY, 2011. PER COURT : . The present petitioner is the original defendant and the landlord. The present respondents filed a suit seeking declaration that the tenancy rights of the plaintiffs are not obliterated and for injunction perpetual and mandatory. During the pendency of proceedings the petitioner moved an application purportedly U/Sec. 10 of the Code of Civil Procedure on the ground that earlier the eviction proceedings were filed against the present respondent. In the said proceedings the Trial Court 2 wp 2773.09 passed an order of eviction. The Appellate Court also confirmed the order of eviction passed against the present petitioner and against which writ petition is pending before this Court. The petitioner contended that the matter in dispute in the earlier proceedings is directly and substantially in issue in the present proceeding. The said application is rejected. Aggrieved thereby the present writ petition is filed. 2. Shri Bajaj, the learned counsel for the petitioner contends that the present proceedings before the Trial Court are an abuse of process of law as well as the Court. The plaintiff in the present proceedings is claiming declaration of his legal right as that of a tenant and is further seeking relief that the present petitioner should construct the structure which is demolished by the competent authority. The decree of eviction is already confirmed by the Appellate Court and the writ petition against the same is pending. As such, the matter in dispute and the subject matter of the dispute is the same in the earlier suit and the present suit. As such, the present suit can not be proceeded further. According to the learned counsel, merely because cause of action is stated to be different that would not be a sole test for deciding the application for stay of the proceedings. The subject 3 wp 2773.09 matter in dispute for both the proceedings are the same. The parties are the same. As such, there is possibility of conflict of orders been passed. In such circumstances, propriety demands that the matter may be stayed. According to the learned counsel, the Trial Court failed to exercise the jurisdiction vested in it while rejecting the said application. 3. Shri Sangit the learned counsel for the respondent supported the order passed by the Court. 4. Section 10 of the Code of Civil Procedure lays down embargo to proceed with the subsequent suit if the matter in dispute is 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. 5. Prima facie consideration for entertaining the application U/Sec. 10 is that the matter in issue should be substantially the same in the earlier suit. The eviction decree was confirmed on the grounds enumerated under the relevant law i. e. default. In the present case the suit is filed by the tenant on the basis of 4 wp 2773.09 cause of action said to have been accrued to him in the year 2004. The plaintiff in the present suit wants a relief regarding declaration that the rights of the tenants still subsists inspite of the events which have taken place subsequently. The same was not a matter in dispute in previously instituted suit. Shri Sangit the learned counsel relied on the judgment of the learned Single Judge of this Court in a case of Aminchand Pyarelal Vs. Union of India reported in (1977) 79 BOM. L. R. 1 and contends that powers U/Sec. 151 cannot be exercised to circumvent the provisions of Section 10. Taking into account the above conspectus of the matter, I do not feel any error has been committed by the trial Court while passing the impugned order. The writ petition as such is dismissed, however, with no costs. [ S. V. GANGAPURWALA, J. ] bsb/July 11