Calcutta High Court
Shyam Sel & Power Limited vs Bahubali Promoters Private Limited on 28 March, 2019
Equivalent citations: AIRONLINE 2019 CAL 151, (2019) 2 CAL HN 368, (2019) 2 CALLT 523, (2019) 4 CIVLJ 450
Author: Soumen Sen
Bench: Soumen Sen, Ravi Krishan Kapur
IN THE HIGH COURT AT CALCUTTA
Original Civil Jurisdiction
ORIGINAL SIDE
BEFORE:
The Hon'ble Justice Soumen Sen
and
The Hon'ble Justice Ravi Krishan Kapur
APO No.51 of 2019
G.A. No.570 of 2019
With
C.S.No. 152 of 2017
Shyam Sel & Power Limited
Versus
Bahubali Promoters Private Limited
For the Appellant : Mr. Ranjan Bachawat, Sr. Adv.
Mr. Rudraman Bhattacharya, Adv.
Mr. Manoj Kumar Tiwari, Adv.
Mr. Suvasish Sengupta, Adv.
For the Respondents :Mr. Jishnu Chowdhury, Adv.
Mr. Soumabho Ghose, Adv.
Mr. Aritra Basu, Adv.
Mr. Dwip Raj Basu, Adv.
Hearing concluded on : 27.03.2019
Judgment on : 28.03.2019
Soumen Sen, J.: This appeal is arising out of an order dated 30th January,
2019 by which the application filed for stay of CS No. 152 of 2017 (hereinafter
referred to as the "said application") was dismissed.
The appellant is the defendant in Suit No. 152 of 2017.
The brief background of the said application is stated below:
The plaintiff filed a suit for eviction in 2010 before the learned City Civil
Court against Shyam Engineering Company Pvt. Ltd. and Shyam Sel and Power
Ltd., for recovery of an office space measuring about 2040 square feet more or
less on the first floor of the premises situated at Ganesh Chandra Avenue,
Kolkata (hereafter referred to as the "suit premises"). The plaintiff has prayed for
eviction of Shyam Engineering Company Pvt. Ltd., inter alia, on the ground that
the said tenant had sub-let the suit premises to Shyam Sel and Power Ltd. The
suit decreed on 2nd September, 2015, on contest. Shyam Sel Ltd., preferred an
appeal from such decree before a Division Bench of this Court, being FA No. 174
of 2016. By an order dated 13th July, 2016, the Division Bench granted
unconditional stay of all further proceedings in the execution case for a period of
two weeks, subject to the appellant/defendant depositing arrear rent up to June,
2016 at the rate of last paid rent together with the decretal cost in the executing
court and continuing to pay occupational charges from July 2016 till the disposal
of the appeal at the rate of Rs. 2,00,000/- per month with the learned Registrar
General of this Court.
On or about July, 2017, the plaintiff filed the instant suit for recovery of
mesne profits on and from 8th July, 2014 for the alleged wrongful occupation of
the said premises. In the suit, the plaintiff claimed mesne profits at the rate of
Rs. 13,000 per diem by reason of wrongful occupation since 2014 and interest
thereon from 8th July, 2014 till 7th July, 2017 at the rate of 18% p.a.
In the plaint, it is alleged that the defendant continued in possession of the
suit premises as a trespasser.
Before the commencement of trial the appellant filed an application for stay
of the instant suit on the ground that the decision of the Hon'ble Division Bench
in F.A. No. 174 of 2016 would operate as res judicata in the instant suit. In view
of the pendency of the appeal, the defendant cannot be treated as a trespasser
and accordingly, the plaintiff is entitled to recover any mesne profits during the
pendency of the appeal. In other words, it was contended that the issue in CS No.
152 of 2007 is also directly and substantially in issue in the previously instituted
suit between the same parties before the Hon'ble Division Bench and without
there being an adjudication as to whether the defendant is a tenant entitled to
protection under the West Bengal Premises Tenancy Act, 1997, the suit on mesne
profits would be premature and not maintainable. The said application was
dismissed by the learned Single Judge on the ground that section 10 of the Code
of Civil Procedure, 1908 would not apply in the instant case as the matter in
issue in the City Civil Court cannot be said to be the matter in issue in the
instant suit. It appears that the appellant had further taken a plea before the
learned Single Judge that the subsequent suit for recovery of mesne profits
would be barred under Order 2 Rule 2 of the Code of Civil Procedure. This
objection was also overruled by the learned Single Judge by relying upon the
judgment of this Court in Santosh Kumar Ghosh & Ors. Vs. Sachindra Nath
Mukherjee & Anr. reported at (1957-58) 62 CWN 759.
The application for stay of the suit was only on the aforesaid two grounds.
However, in the appeal, the appellant had submitted that before the learned
Single Judge it was argued that in any event the suit is barred under section 151
of the Code of Civil Procedure, and in support of such submission reliance was
placed on a Division Bench judgment of our Court in Jugometal Trg Republike
Vs. Rungla and Sons (Private) Ltd. reported at AIR 1966 Cal 382. However,
we do not find any reflection of such argument in the impugned judgment.
Although there is a disagreement at the bar as to whether this point was
argued or not, but having regard to the fact that pure question of law can be
raised at the hearing of the appeal, we permitted Mr. Rudraman Bhattacharya,
learned counsel representing the appellant, to raise this issue in the appeal.
The suit for mesne profits is not barred under Order 2 Rule 2 of the Code
of Civil Procedure. It is true that in the first suit no claim for mesne profits was
made. However, it does not mean that the plaintiff would forfeit its right to make
a claim for wrongful use and occupation of the premises in respect of which the
plaintiff has obtained a decree and which property continued to remain under the
occupation of the defendant even after the decree. The claim towards such use
and occupation arises after the date of the decree and the decree gives the cause
of action for making a claim of this nature. With regard to the past mesne profits
the plaintiff had an existing cause of action on the date of the institution of the
suit, with regard to the future mesne profits, the plaintiff has no cause of action
on the date of the institution of the suit and hence it is pre-mature. It is not
possible for the plaintiff to plead this cause of action in the earlier suit. In
respect of the suit for compensation, as it happens in the instant case, has arisen
subsequent to the decree in the earlier suit. It constitutes a new cause of action
and as such the present suit for mesne profits is maintainable. In Santosh
Kumar Ghosh (supra) it has been clearly stated in the following words:-
"The obligation to pay mesne profits arises from a cause of
action completely different from the obligation to restore possession of
the immovable property to the rightful owner. That being so Order 2
Rule 2 of the Code of Civil Procedure is no bar to the institution of a
subsequent suit for mesne profits. A claim for mesne profits is not
based on the same cause of action as the claim for possession. A
claim for mesne profits subsequent to filing of a suit for possession is
not barred property of res judicata."
In a fairly recent decision of the Hon'ble Supreme Court in M/s. Raptakos,
Brett & Co. Ltd. v. M/s. Ganesh Property reported at AIR 2017 SC 4574 it is
stated:-
"From a reading of the provisions of Order 2 Rule 2 and Rule 4
of the Code of Civil Procedure and the principles laid down in various
decisions of our Court as well as the Hon'ble Supreme Court it is clear
that under Order 2 Rule 2 read with Rule 4 the plaintiff can also claim
mesne profits or arrears of rent in a suit filed for ejectment for eviction
of a tenant. The plaintiff filed a fresh suit for claiming mesne profits or
arrears of rent for the period subsequent to the decree passed in the
earlier suit having become final. But in a case where the plaintiff has
claimed mesne profits or arrears for rent in a suit filing for ejectment of
the tenant and has relinquished his rights vis-a-vis mesne profits or
arrears of rent in the suit proceedings itself, the provisions of Order 2
Rule 2 will come into play and in comparison to the second suit for
mesne profits or arrears of rent till the decree, the earlier suit will
attain finality."
Hence the learned Single Judge in our view has correctly held that bar
under Order 2 Rule 2 would not apply in the instant case.
Mr. Ranjan Bachawat learned Senior counsel appearing on behalf of the
appellant has strenuously argued that the suit for mesne profits is barred under
Section 10 of the Code of Civil Procedure on the premise that the decree passed
in the earlier suit for eviction is under appeal and appeal is a continuation of the
suit. Mr. Bachawat, in this regard relied upon a three Judge Bench decision of
the Hon'ble Supreme Court in Union of India (UOI) & Ors. v. West Coast Paper
Mills Ltd. & Ors. reported at AIR 2004 SC 1596:- (2004)2 SCC 747 (paragraph
14) and has submitted that it has been clearly stated in the said decision that in
an appeal from the decree the Appellate Court would be entitled to go through
the questions of fact as well as law and in that sense the correctness of the
judgment in appeal is in jeopardy. In the present suit the plaintiff would be
required to establish that the appellant was in wrongful possession and hence
entitled to mesne profits for the period under such wrongful occupation and even
thereafter till the possession is delivered. Mr. Bachawat submits that the
Appellate Court would be required to decide whether the appellant is liable to be
evicted under the provisions of the West Bengal Premises Tenancy Act. Hence
the question of any mesne profits in the present action is dependent upon the
adjudication in the appeal as to whether the appellant is liable to be evicted
under the West Bengal Premises Tenancy Act. The decree, in view of the appeal,
is not final inasmuch as the appellant is enjoying an order of stay of execution of
the decree on terms and conditions which the appellant had fulfilled and is
complying with all directions of the Hon'ble Division Bench. Mr. Bachawat
submits that since the appeal is in continuation of a suit, the question of
unauthorised occupation of the defendant would come up for consideration in
the appeal and it squarely fits into the expression "the matter in issue is directly
and substantially in issue" in the previously instituted suit, namely, the suit for
eviction and hence the second suit for mesne profits is liable to be stated under
Section 10 of the Code of Civil Procedure. Mr. Bachawat submits although a
Division Bench of our Court in J.T. Republike v. Rungta & Sons reported at
AIR 1966 Cal 382 has held that a suit under Section 151 of the Code of Civil
Procedure can be stayed, but it appears that the said judgment has not taken
into consideration an earlier Supreme Court judgment of Manohar Lal Chopra
v. Rai Bahadur Rao Raja Seth Hiralal reported at AIR 1962 SC 527 wherein
it has been held that when there is an express provision in the code, any
departure therefrom is not permissible. Mr. Bachawat submits that since
Section 10 is the ruling section recourse cannot be had under Section 151 of the
Code of Civil Procedure although that might be the view expressed by the
Division Bench in J.T. Republike (supra).
Per contra Mr. Jishnu Chowdhury learned counsel representing the
petitioner submits that the causes of action in both the suits are different. The
matter in issue in the City Civil Court suit is different from the matter in issue of
the present suit. The suit before the City Civil Court is for eviction due to sub-
letting whereas the instant suit is for recovery of mesne profits. It matters little
as to whether the cause of action of the present suit may have some connection
with the decree passed in the earlier suit. In fact, an independent suit for mesne
profits is maintainable without even referring to the decree passed by the City
Civil Court. Mr. Chowdhury submits that in deciding an application under
Section 10 of the Code of Civil Procedure the Court needs to ascertain if there is
an identity of the matter in issue in both suits are same, in other words, Section
10 would apply only when whole of the subject-matter in both the proceeding is
identical. Since in the instant case, the whole of the subject-matter are not
identical and based on different cause of action, Section 10 of the Code of Civil
Procedure would not apply. Mr. Chowdhury in this regard has relied upon a
decision of the Hon'ble Supreme Court National Institute of Mental Health &
Neuro Sciences v. C. Parameshwara reported at AIR 2005 SC 242: 2005(2)
SCC 256 (paragraph 8). Mr. Chowdhury has relied upon Manohar Lal Chopra
(supra) to argue that recourse to Section 151 of the Code of Civil Procedure
cannot be taken to nullify the provisions of the code, namely, Section 10 of the
Code of Civil procedure. Mr. Chowdhury submits that the appellant has to
establish that Section 10 applies in the instant case and whole of the subject-
matter in both the suits are identical failing which the appeal must fail.
The underlying object of the rule contained in Section 10 of the Code of
Civil Procedure is to prevent Courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in
respect of the same cause of action, the same subject-matter and the same relief.
The basic purpose is to protect a person from multiplicity of proceedings as also
to avoid conflict of decisions. The true intent of the said Section is that common
matters in issue in two suits ordinarily be decided in a previously instituted suit.
The object of the prohibition contained in Section 10 is considered in Indian
Bank Vs. Maharashtra State Co-operative Mrketing Federation Ltd.,
reported in (1998) 5 SCC 69. The Hon'ble Supreme Court at page 72 of the said
reports stated as follows:-
"The object of the prohibition contained in Section 10 is to prevent the
Courts of concurrent jurisdiction from simultaneously trying two parallel suits
and also to avoid inconsistent findings on the matter in issues. The provision
is in the nature of a rule of procedure and does not affect the jurisdiction of
the Court to entertain and deal with the later suit nor does it create any
substantive right in the matter. It is not a bar to the institution of the suit. It
has been construed by the Court as not a bar of the passing of interlocutory
order such as an order for consolidation of the later suit with the earlier suit,
or appointment of a receiver or an injunction or attachment before judgment."
The Privy Council in Annamalay Chetty Vs. Thornhill, reported in A.I.R.
1931 PC 263 observed that if the decision in one suit would have the effect of
being res judicata in respect of the issues arising in the subsequently instituted
suit, then it would not be proper to proceed with the trial of the very same issues
in a subsequently instituted suit. In the words of Blackwell, J, (Durgaprasad Vs.
Kantichandra, reported in A.I.R. 1935 Cal. 1), the test is whether the
previously instituted suit and subsequently suit were parallel, that is to say, if the
first suit was determined, the question raised in the second suit would be barred
by the doctrine of res judicata. In other words, if by the decision in the previously
instituted suit, the subsequent suit would fail as a whole on the principle of res
judicata, the subsequent suit must be stayed.
In fact, a learned Single Judge of this Court in Ashok Kumar Yadav Vs.
Noble Designs Pvt. Ltd., reported in A.I.R. 2006 Calcutta 237 held that for
determining whether the matter in issue in a subsequently instituted suit is
directly and substantially issue in previously instituted suit, absolute identity of
parties in both the suits is not a relevant consideration. The relevant observations
of the learned Single Judge are set out hereinbelow:-
"11. The hotly debated point is whether the matter in issue in
the Calcutta suit is directly and substantially in issue in the Patna suit.
In my view, for answering the question in the present case, it will not
be necessary to discuss the authorities cited to me in detail. There is
no dispute regarding the proposition that the expression "matter in
issue" shall mean (as said by the Apex Court in Mathura Prasad) (AIR
1971 SC 2355). "The right litigated between the parties, i.e., the facts
on which the right is claimed or denied and the law applicable to the
determination of that issue." In other words, the expression means the
whole subject-matter; that is to say, the entire controversy between the
parties. In my view, if the present case is tested by applying this
proposition, it cannot be held that the matter in issue in the Calcutta
suit (the subsequently instituted suit) is directly and substantially in
issue in the Patna suit (the previously instituted suit).
12. The subject-matter of the Patna suit is the agreement for sale
on the basis whereof the defendant in the Calcutta suit, as plaintiff
there, prayed for a decree for specific performance of contract. The
power of attorney originated from that agreement. In the absence of the
agreement the power of attorney simply becomes non-est; it will not
have any independent existence. That is to say, unless the agreement
exists, the power of attorney cannot survive. So the question of validity
of the agreement is the whole controversy between the parties in the
Patna suit. I have no hesitation in saying that the same controversy is
the whole subject-matter of the Calcutta suit. The decree for
declaration that the power of attorney stood cancelled has been sought
on the ground that the sale agreement stood cancelled. The power of
attorney was not an instrument capable of existence once severed from
the agreement for sale, it was born out of Cl. 17 of the agreement.
13. The whole controversy in the Calcutta suit is whether it stood
cancelled consequent upon determination of the agreement, as claimed
by the plaintiff. Thus it cannot be said that the whole subject-matter of
the Calcutta suit is not identical with the subject-matter of the Patna
suit. The controversy between the parties being one and the same, I
am unable to hold that the matter in issue in the Calcutta suit is not
directly and substantially in issue in the Patna suit. In my opinion, the
decision in the Patna suit will make the Calcutta suit absolutely
useless and academic. Nothing of any substance will remain for
decision in the Calcutta suit.
14. For these reasons I hold that the trial of Calcutta suit should
remain stayed, and that the S. 10 application should be allowed. I
accordingly allow the application, and order that till the disposal of the
Patna suit trial of the Calcutta suit shall remain stayed."
In order to attract the provision of Section 10 of Code of Civil Procedure, the
following conditions are required to be fulfilled.
i. Two suits- one previously instituted and the other
subsequently instituted;
ii. Matter in issue-The matter in issue in both the suits
must be same meaning thereby the entire subject
matter of the two suits must be same and identical.
It is however, not necessary for the applicability of
this Section that all the issues in the previously
instituted suit must also be the issues in the
subsequently instituted suit, nor it is essential that
the reliefs claimed in both the suits should be
identical;
iii. Same parties;
iv. Pendency of suit;
v. Same relief : it is essential that the Court in which
the first suit is pending must be competent to grant
the relief claimed in that suit and also the relief
claimed in the second suit (Mitra Lina Pr. Ltd. Vs.
The Finlay Mills Ltd. & Anr, A.I.R. 1982 Cal.
41);
In National Institute of Mental Health & Neuro Sciences
(Supra), the Hon'ble Supreme Court was considering the applicability
of Section 10 in relation to the proceedings initiated before the
Labour Court under the Industrial Disputes Act, 1947 and another
proceeding before the Civil Court. In the said decision, it was held as
under:-
"the cause of action in filing Suit No.1732 of 1995 is the loss
suffered by the appellant on account of the misappropriation of drugs
by the respondent, established in the departmental enquiry against
him wherefore he was also removed from service. On the other hand,
in the said Writ Petition No.24348 of 2002, the management has
challenged the award of the Labour Court granting reinstatement of the
respondent. Both the proceedings operated in different spheres. The
subject-matter of the two proceedings is entirely distinct and different.
The cause of action of the two proceedings is distinct and different."
In paragraph 8 of the said report it is state:
"8. The object underlying Section 10 is to prevent Courts of concurrent
jurisdiction from simultaneously trying two parallel suits in respect of
the same matter in issue. The object underlying Section 10 is to avoid
two parallel trials on the same issue by two Courts and to avoid
recording of conflicting findings on issues which are directly and
substantially in issue in previously instituted suit. The language of
Section 10suggests 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 object of Section 10 is to prevent Courts
of concurrent jurisdiction from simultaneously trying two parallel suits
between the same parties in respect of the 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 the suits is identical.
The key words in Section 10 are "the matter in issue is directly and
substantially in issue" are used in contra-distinction to the words
"incidentally or collaterally in issue". Therefore, Section 10 would
apply only if there is identity of the matter in issue in both the suits,
meaning thereby, that the whole of subject matter in both the
proceedings is identical."
This decision has recently come up for consideration in Aspi Jal and Ors.
vs. Khushroo rustom Dadyburjor reported at (2013) 4 SCC 333 in which the
Hon'ble Supreme Court has explained what is mean "by matter in issue". It was
held:-
"The key words in Section 10 are "the matter in issue is directly
and substantially in issue in the previously instituted suit". The test for
applicability of Section 10 of the Code is whether on a final decision
being reached in the previously instituted suit, such decision would
operate as res-judicata in the subsequent suit. To put it differently one
may ask, can the Plaintiff get the same relief in the subsequent suit, if
the earlier suit has been dismissed? In our opinion, if the answer is in
affirmative, the subsequent suit is not fit to be stayed. However, we
hasten to add then when the matter in controversy is the same, it is
immaterial what further relief is claimed in the subsequent suit."
(emphasise supplied)
The key words in Section 10 are "the matter in issue is directly and
substantially" in issue in the previous suit. The words "directly and substantially
in issue" are used in contradiction to the words "incidentally or collaterally in
issue". Section 10 relates to the principle of res sub-judice, that is, a matter
which is pending judicial adjudication. The object of the section is to protect the
parties from being vexed twice for the trial of the same cause. In other words, the
purpose of Section 10 is to prevent competent Courts of concurrent jurisdiction
from having to try parallel suits, in respect of the same matter in issue and
thereby to pave the way for the Court to really see if the decision of the matter
directly and substantially in issue in the former suit will or will not lead to the
decision directly and substantially in issue in the subsequent suit and if it is
satisfied that it will then it must stay the trial of the subsequent suit and await
the decision in the former suit.
In the instant case the plaintiff has based its cause of action on the decree
for eviction dated 22nd September, 2015. The claim for mesne profits is based on
the decree passed on 22nd December, 2015 in the suit filed before the City Civil
Court. This would be evident from paragraphs 2, 3, 4 and 5 of the plaint. The
said paragraphs read:
"2. By a notice dated 20th January, 2005, issued under Section 6(4) of
the West Bengal Premises Tenancy Act, 1997, the tenancy of Shyam
Engineering Company Private Limited was terminated. A copy of the said
notice is annexed hereto and marked with the letter "B". Shyam Sel &
Power Limited (formerly known as Shyam Sel Limited), the defendant
herein, had been illegally inducted into possession in respect of the suit
premises by Shyam Engineering Company Private Limited, since long before
July, 2014.
3. In the said circumstances, Ejectment Suit No. 4 of 2010 was filed
before the Learned City Civil Court at Calcutta by the plaintiff, which has
resulted in a decree for eviction dated 22nd September, 2015 against both
Shyam Engineering Company Private Limited and the defendant herein. A
copy of the judgment and decree dated 22nd September, 2015 is annexed
hereto and marked with the letter "C".
4. The defendant has thereafter preferred an appeal being F.A. No.
174 of 2016. In the said appeal an interim order dated 13th July, 2016, was
passed by the Division Bench of this Hon'ble Court, a copy whereof is
annexed hereto and marked with the letter "D". The appeal is pending
adjudication.
5. The defendant is continuing in possession of the suit premises as a
trespasser in respect thereof. The defendant has no right to remain in
occupation of the suit premises."
In Union of India v. West Coast Paper Mills Ltd. reported at (2004) 2
SCC 747, the principle that "an appeal is in continuation of suit" has been
reiterated (See also: Lachmeshwar Prasad Shukul & Ors. vs. Keshwar Lal
Chaudhuri & Ors. reported at AIR 1941 Federal Court 5 and Karan Singh &
Ors. vs. Bhagwan Singh (dead) by L.Rs. & ors. reported at (1996) 7 SCC 559).
As observed in Jugometal Trg Republike (supra) a suit within the
meaning of Section 10 includes an appeal just what has been held by Rankin, J.
(as his Lordship then was) in Jamini Nath Mallik v. Midnapur Zemindary Co., AIR 1923 Cal 716 and also by Sir Asutosh Mookerjee who observes in Bepin Behari's Case, 24 Cal LJ 514: (AIR 1917 Cal 248):
"It is plain that it section 10 is otherwise applicable, its operation is not excluded by the fact that the previously instituted suit has reached the stage of an appeal".
It further proceeds to state:
"This is clear from the use of the expression "Before His Majesty in Council", and this view was expressly adopted in the case of Chinnakaruppan Chetty, A.L.M.S.S. v. M.V.M. Meyappa Chetty reported at (1915) 30 IC 753, where it was pointed out that proceedings on appeal are for many purposes deemed only a continuation of the suit instituted in the first Court, Pichuvayyangar v. Seshayyangar reported at (1895) 18 Mad 214 (FB) and Kristnama Chariar v. Mangammal reported at (1903) 26 Mad 91 (FB). Consequently, the mere fact that the decree in the previously instituted suit is under appeal in this court, does not enable the plaintiffs to invite us to hold that S. 10 is inapplicable."
An appeal is a valuable right of the litigant and the parties have a right to be heard both on questions of law and on facts (See: C. Venkata Swamy vs H.N. Shivanna reported at (2018) 1 SCC 604; Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. reported at (2001) 3 SCC 179; and H.K.N. Swami v. Irshad Basith reported at (2005) 10 SCC 243).
The question in the instant case reduces to this: "Is the matter in issue in the subsequently instituted suit for mesne profits also directly and substantially in issue in the previously instituted suit namely for eviction?"
The decision in the earlier suit against the appellant, by which the appellant was held to be in unauthorised occupation and hence treated to be trespasser, is now pending for final adjudication in F.A. No. 174 of 2016. In the present suit, that is, G.A. 152 of 2017, from a perusal of the paragraphs in the plaint set out hereinbefore, the primary question in the instant suit is whether the defendant has been lawfully or unlawfully inducted in the suit premises and whether its continued possession is with or without the authority of law. We are of the view that there is substantial identity of the matters in issue in both the suits.
The suits are between the same parties litigating under the same title and that requirement of the Code is fulfilled. The expression "the matter in issue" has reference to the entire subject matter in controversy between the parties. (See. Bepin Behary Mozumdar (supra)).
The Court under the inherent power can stay initiation or continuation of any proceeding, if it appears to be vexatious, oppressive and abuse of the process of the Court. In such a situation the Court need not be guided by the principle of Section 10 of the Code of Civil Procedure and can exercise the inherent powers of the court for the ends of justice. Accordingly, we are of the view that Section 10 would not be the only provision that governs stay of suits. However, it would depend upon the facts of each case and for the courts to record its satisfaction that continuation of such proceeding would be vexatious or harrassive or oppressive or abuse of the process of the Court.
In the instant case any reversal of the decree by the appellate Court would non-suit the plaintiff in the present proceeding. The appellant did not apply for stay of the operation of the decree as the present suit was filed after the decree was passed in favour of plaintiff for realisation of mesne profits. The execution of the decree, however, has been stayed which in effect means that the decree cannot be enforced. Effectively it is stay of operation of the decree. The rights of the parties are in suspended animation.
On such consideration we accept the submission made by Mr. Bachwat appearing on behalf of the appellant and set aside the impugned order. C.S. No.152 of 2017 shall remain stayed till the disposal of F.A. No. 174 of 2016.
Urgent Photostat certified copy of this judgment, if applied for, be given to the parties on an usual undertaking.
(Soumen Sen, J.) I agree (Ravi Krishan Kapur, J.)