Delhi District Court
Sh. Praveen Kumar vs Sh. Gopi Dargan on 22 May, 2013
In the court of Ms. Ina Malhotra, Additional District JudgeI
New Delhi District: Patiala House Courts, New Delhi
Suit No. 207/11
Sh. Praveen Kumar .....Plaintiff.
V E R S U S
Sh. Gopi Dargan .....Defendant
O R D E R
Defendant has filed an application under Section 10 CPC.
2. The plaintiff has vehemently opposed the same and has drawn the attention of this Court to the fact that this is the second such application filed by the defendant and their submissions have already been rejected by this Court vide order dated 31.10.2012. The said order of this Court was impugned in an FAO which was subsequently withdrawn by the defendant/applicant and liberty was granted to them to agitate their grievance again before this Court in the light of certain law points raised by them in RSA No. 168/2012 pertaining to the suit property and between the same parties.
3. The brief background of this case is that the plaintiff Suit No. 207/11 Page 1 of 7 had first filed a suit for possession and recovery of house tax which was decreed in their favour. The decision of the Trial Court was upheld by the first Appellate Court and is now pending consideration in RSA No. 168/2012 before the Hon'ble High Court of Delhi. There is however no stay of proceedings. The plaintiff then proceeded to file the present suit which is for recovery of mesne profits and damages. The defendant vide their application under Section 10 CPC had prayed for stay of the suit pending disposal of the RSA. This Court vide its Order dated 31.10.2012 had considered the submission and rejected it on the grounds that the present suit was distinct from the earlier case which was for recovery of property tax and for possession. It was observed that provision of Section 10 CPC would come into operation if the matter in issue was directly and substantially the same in the previously instituted suit between the same parties. This Court took note of the observation of the Hon'ble High Court of Delhi in the matter of Virender Kumar Garg V. Manju Garg, in CM (M) No. 409/12 vide which the Hon'ble Court had clearly observed that the suit for possession and claim for mesne profits are two distinct causes of actions and though it may be Suit No. 207/11 Page 2 of 7 open to the party to join in the claim on both counts, but the provisions of Section 10 CPC would not be applicable when two separate cases are filed for possession and mesne profits.
4. Ld. Counsel for the defendant/applicant submits that the decision of the Hon'ble High Court of Delhi in the RSA would have a direct bearing on the outcome of this case. The decision of the Hon'ble High Court of Delhi is awaited in respect of two issues which are :
a) Whether the property tax payable by the tenant in terms of Section 67 of the NDMC Act, 1994 could be taken to be constituting a part of the rent for the purpose of seeking ejectment of the tenant either under the Delhi Rent Control Act, 1958 or any other appropriate civil forum?
b) Whether the property tax which is payable by the tenant in terms of Section 67(3) of the NDMC Act levied subsequent to the passing of the Delhi Rent Control Act, 1958 cannot deem to be a part of the rent under Section 3(c) of DRC Act as to hold that he continues to enjoy the protection of Section 50 of the Delhi Rent Control Act on the ground that the contractual rent being less than Rs. 3,500/?
5. In view of the same, the defendant/applicant has again prayed for stay of the present proceedings.
6. Resisting the said prayer, the plaintiff has again Suit No. 207/11 Page 3 of 7 relied upon a catena of judgments. In the matter of Aspi Jal and Anr. V. Khushroo Rustom Dadyburjor in Civil Appeal No. 2908/13, the Apex Court has held that the provision of Section 10 CPC would not apply where few of the matters in issue are common but would apply only when the entire subject matter in controversy is the same. In other words, the matter in issue is not equivalent to any of the questions in issue.
7. The decision of the Bombay High Court in the matter of Purushottam and another V. M/s Nag Vastra Bhandar reported in AIR 1979 Bombay 60 has a direct bearing on the present case which observed that in a second appeal arising out of the suit for ejectment and mesne profits, the High Court had granted an order staying only the delivery of possession and the enquiry into mesne profits had not been stayed. Merely by reason of filing of the appeal, the preliminary decree so far as it directed the enquiry into the future mesne profits would not stand suspended. It was held that it would not be correct to say that an enquiry into the mesne profits would not commence because an appeal was pending. The institution of the appeal does not nullify the findings recorded and the conclusions arrived at by the lower Suit No. 207/11 Page 4 of 7 courts. These findings and conclusions would stand till they were set aside, modified or reversed by the higher courts.
8. The Apex Court in the matter of National Institute of Mental Health and Neuro Sciences V. Parameshwara reported in AIR 2005 SC 242 has held that the applicability of Section 10 CPC for staying the suit would come into play only when the subject matter in both the proceedings are identical. The Apex Court observed that the object of Section 10 CPC was to prevent the court of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue.
9. Arguments advanced by both the parties have been duly considered by this Court.
10. It would be highly inequitable to stay the proceedings in this case which is for enquiry and recovery of mesne profits, merely to await the outcome in the Regular Second Appeal preferred by the defendant. There is no stay of the suit. It would also not subserve the ends of justice to put this case in cold storage only because an appeal is pending before a superior court. Till such time as the decisions of the lower courts are set aside, Suit No. 207/11 Page 5 of 7 they would be binding.
11. Given these circumstances, I do not find any reason to stay the proceeding with respect to quantifying the mesne profits and damages. The subject matters of both the suits are totally different. The defendant/applicant has prayed for stay of the operation of the present suit in the fond hope of having law settled in his favour. Should the law be settled in favour of the defendant/applicant at the future date, they would be at liberty to resist the present suit or its execution at a later stage. The present suit is only at the stage of pleadings and has a long way to go before final adjudication. It would be inexpedient to stay further adjudication in this suit at the defendant's instance that law may be settled in their favour which shall have a bearing on the outcome of the present case.
12. At this point of time, this application does not merit consideration and is dismissed.
Announced. (Ina Malhotra)
Addl. District JudgeI
New Delhi District : PHC
New Delhi : 22.05.2013
Suit No. 207/11 Page 6 of 7
Suit No. 207/11
Present : Counsel for the parties
Vide separate Order, the application of the defendant is dismissed. List this case for crossexamination of the plaintiff's witness on 15.07.2013.
(Ina Malhotra) Addl. District JudgeI New Delhi District : PHC New Delhi 22.05.2013 Suit No. 207/11 Page 7 of 7