HIGH COURT OF CHHATTISGARH. BILASPUR WRIT PETITION (227t No. 6391/2008 PETITIONERS M/s. Anmol Motors and another Versus RESPONDENTS M/s Shivam Liraited Motors Private O R D B R Post for7 -9-2009 Sd/- N.K.Agarwal Judge 1 EI \,' ^ HIGH COtmT OF CHHATTISGARH, BIIASPUR WRIT PBTITION i227i No. 6391/2008 PETITIONERS DEFENDANTS RS^PONDENTS PLAINTIFF 1. M/s. Anmol Motors, New Bus Stand through proprietor Shri Santosh Kumar Agrawal 2. Santosh Kumar Agi'awal, S/o Shri Gourishanker Agrawal, aged about 39 years, proprietor M/s Anmol Motors, near New Bus Stand Korba, R/o Agrasen Road, Basan Gali City, Tahsil aad Distt. Korba Chhattisgarh Versus M./S Shivain Motors Private Limited, a registered company, Head Office 124, Napier Town, Jabalpi.iT M.P. tl-irough S.S. Bisht Executive Vice President M/s Shivam Motors Private Limited Branch Ofilce, Raipm', Road, Bilaspur City, Tahsil and Dist.net Bilaspur Clihattisgarh Shri Pramod Verma, Sr. Advocate with Shri Sumit Vei-ma, Advocate for fh.e petitiouers. Shri Saajay S, Agrawal, Adv. for the respondent ''Y SB; H03TBLE JUSTICB N.K. AGARWAL. ORDEH (^ -9-2009) 1. The instant petition is directed against the order dated 29-8-2008 passed by the District Judge, Korba in Civil Suit No. 18 B/2009 whereby and whereunder aa application preferred by the defendaiits / petitioners herein imder Section 10 of C.P.C. has been disniissed. 2. Brief facts of the case are that the plaintiff/respondent flled a suit for recovery of Rs. 3,67,740/- as arrears of rent on the basis ofone rent deed dated 12-8-2000. The ^" 3. 4. 2\t ^ defendaiits denied their liability to pay any rent Leained Couil below framed issues, evidence was led by the pailies and thereafter vide judgment and decree dated 12-10-2007, a decree was passed in favour ofthe plalntiff for recoveiy of Rs. 2,36,740/- wifh interest. Agaiiist that, the petitioner preferred First Appeal No. 11/2008 before this Court which is pending consideration. The respondent/plaintiff filed another suit for recover^7 of Rs. 4,61,231/- on accouiit of aiTears of rent and tax dues recoverable from the defendants/petitioners claunmg arrears of rent for a period which is subsequent to the period for which fhe prior suit was filed by him. The petitionere herein filed written statement. Issues were framed and tliereafter the petitioners filed an application under Section 10 of the C.P.C. for stayiiig the trial of the subsequent suit. The trial Court vide order impugTied dismissed tl-ie application. Hence fhis petition. Sliri Pramod Verma, leamed Sr. Counsel appearing for the petitioners would submit that the matter in issue in the previous suit and in fhe instaat suit is same. In both the suits, the crucial matter ta issue was whether there is relationship of landlord and tenant between the respondent/plaintiff aiid the petitioners/defendants or not; both suits are between the same parties and, fherefore, learned trial Court ought to have stayed the instaut suit, which is subsequent in terms of provisions contained m Section 10 of C.P.C. which ai'e mandator^7 ui nature. Shri Verma has refen'ed to para 8 of fhe plaint filed by the respondent/plaintifT in the instant suit and submitted that even as per plainttff, findings of ^?€'\ M '^!^^-% ^, _ -. .•.. r-t-—-.."^ ^j^y. s^cfy ^ i : : 7. earlier suit on sunilar issues operates as resjudicata in the instant suit. Per contra, Shri Sanjay S. Agrawal, learned Counsel appeariiig for the respondent v^ould submit fhat in the previous suit, rent was clauned for the period upto 30- 6-2003, whereas in this suit, tlie rent for subsequent period along with the tax paid by tfae respoudents has been claimed, aiid therefore, the subject matter of both the suits is uot identical which is a pre-condition for staying the suit under Section 10 of C.P.C. By placing reliance upon the judgment of Supreme Court in the case of National Ifistitute of Mental Health aiid Neuro Sciences -v- C. Parameshwara reported in (2005) 2 SCC 256, he would submit that the trial C/ourt has rightly rejected the application. He would further submit that this Court should not interfere in the well reasoned order pas^d by the tdal Court in exercise of jurisdiction under Article 227 of the Constitution of India. I have heard leamed counsel for the parties and perased the record as also fhe order impugned. Before considering the rival submissions put forth by the leamed counsel for the pard.es, it would be appropriate to advert to the relevant provisions contained in Section 10 of C.P.C. wliich read as under:- s10. Stay ofstdt,- No Court shallproceed with the trial ofany suit in luhichthe matter in issue is also directly and substantkdly in issue in a previo-usly 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 m an.y Cou?t beyond the Umits of India established or continued by the Central l^ Govemment and havmg like jwisdiction, or before the Supreme Court.3! 8. The main contention advanced on behalf of the petitioners is ttiat tlie questiou of recovery of rent is directly and substantiaUy m issue in both the suits and as such, the subsequent suit pending before the District Judge be stayed under Section 10 ofthe C.P.C. tiU the disposal of the first appeal pending tn this Court which arises out of the judgment and decree passed in the earlier suit. 9, As regards tlie proposition oflaw, it camiot be disputed that fhe provisions contamed ui Section 10 of C.P.C. are mandatoiy in nature and when fhe facts of a particular case invoke the operation of that section, the Courts have no other alteniative but to give effect to it and stay the suit. I have therefore to deteniiine if tlie matter m issue in the present smt is directly or substantially in issue in the First Appeal No. 11/2008, which must be taken to be tiie continuation of a previously instituted suit. 10. In this case, it is admitted fact fhat the first suit was filed for rent in respect offhe period from 1-4-2000 upto 30-6-2003 and the present si.ut is ta respect of subsequent period of tliree years along with tax dues from the year 2000 upto 2007. 11. The Supreme Court in case of National lastitute of Mental Health and Neuro Science (supra) obseived in para 8 as under:- ffS. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneausly trying two parallel suits in respect o/ the same matter in issue. The object underlying Sectipn 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of i^> 12. conflicting ftndings on issues which are directly and substantially in issue in previously9 instiiuted suit The languc^ge 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 objeat of Section 10 is to prevent courts of concurrent jurisdiction from simultajzeously trying two parallel suits between the same parties in respect of the same matter in issue. The jundamental test to attf'act Section 10 is, whether on final dedsion being reached in the previoiis suit, such decision would operate as res judvcata in the subsequent suit Section 10 applies only in cases ivhere the whole of the subject-matter in both the suits is identicai The key words in Section 10 are ^the matter in issue is directly and substantixdly in issue39 in the previous instituted suit The words "directly and substantially in issue" are vsed in contradistinction to the words Kmcidentally or collateraUy in issues. Therefore, Section 10 would apply only if there is identity of the matter in issue m both the suits, meaning thereby, that the whole o/ the subject'matter in both the proceedings is identical') By applying fhe dictum of above referred cose of the Supreme Court, it would be crystal clear that tlie fundamental test to attract Section 10 is, whether on fiual decision being reached in th.e previous suit^ such decision would operate as res judicata in the subsequent suit Section 10 appMes only in cases where the whole of the subject-matter in both the smts is identical. The key words in Section 10 are "the matter in issue is du-ecfly and substantially in issue" in fhe previous instituted suit. The words "directly aiid substantially tn issue" are used ia contradistmction to fhe words "incidentally or collaterally in issue??. Therefore, Sectiori 10 woiild apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical." 6 A- \\^ 13. A Single Bench of High Coiirt of Delili in case ofVijay Kiimar and pthers -v- Manohar Lal aasd otlaers (AIR 1979 Deihi 1) while deating with almost an identical issue, by placing reMance upou ftie decision in the cases of Ba! Kishaaa -¥- mshan Lal [(1889) ILR 11 All 148], Bepia Behary Mozumdar -v- Jogexidra CSiandra Ghosh (AIR 1917 Cal. 248), Hoshan Dia -v- Malan Bibi (AIR 1938 Lah. 502), Gar^ Dtn Mishm -v- Debi Charan (AIR 1929 AU 805} and Chanuaa Kuer -v- Salideo Sing3h (ADR 1929 Oudh 341), has held that the section canuot apply to claims for rent due at successive periods altogether. In case of Velur Munuswami Mudaliar -v- Darwaja Ra^aupathi (AIR 1940 Mad 7), whlle interpreting the expression "the niatter in issue?? it has been held by Abdul Rehman, J that the matter in issue as used in Section 10 does not mean any matter in issue. The matter in issue in a previously instituted suit refers to entire subject matter in dispute not to one of the issues however tmportant it may be for the decision ofthe suit. 14. By applying the ratio of Supreme Court's decision as referred hereinabove aad by applying the prmciples laid down in the judgment of various High Court. to which I am iu respectful agreement^ iu the facts situation of the present case, it would be clear fhat the previous suit was for recovery of arrears of rent for a period of 3 years ending on 30-6-2003 whereas the present suit is for fhe recovery of rent for a period subsequent fhereto mid also for recovery of tax dues. Proper effect must be given to the language used by the LegislatLire tn Section 10 that identity required is a substantial identity. There must be an identity of fhe subject-matter and therefore, it cannot be said that the subject matter of the present suit which is filed for recovery of fhe reut for a period subsequent thereto is whoUy identical to the subject matter of the previous suit. 15. In view of the above, I am of the considered opinion tliat the trial Court has not committed any illegality or uregularity leading to manifest injustice so as to invoke extra ordinary jurisdiction of this Court Lmder Article 227 ofthe Constitution oflndia. 16. It is well settled pmiciple of law that this Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India, should refrain itself from interfering with the order passed by the Court below except in such cases where perversi^, illegality or jurisdictional error is writ large on the face of fhe record, which is not in the present case. 17. The petition deserves to be and is hereby dismissed. Sd/- N.K.AgarwaI Judge \AZ