Calcutta High Court (Appellete Side)
Pappu Kumar Singh vs Subhas Saha & Anr on 17 March, 2017
Author: Ashis Kumar Chakraborty
Bench: Ashis Kumar Chakraborty
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. 4625 of 2016
Pappu Kumar Singh
Vs.
Subhas Saha & Anr.
For the petitioners : Mr. Sourav Sen
Mr. Debnath Mahata
For the opposite parties : Mr. Sabyasachi Bhattacharya
Judgement on : 17.03.2017
Ashis Kumar Chakraborty, J.
This revisional application under Article 227 of the Constitution of India is directed against the order dated November 17, 2016 passed by the learned Civil Judge (Senior Division) at Sealdah, District- 24-Parganas (South) in Title Suit No. 146 of 2014. By the impugned order, the learned Court below rejected the application of the present petitioners, as the defendants, under Section 10 of the Code of Civil Procedure (in short "the Code") praying for, stay of all further proceedings of the aforementioned suit till the disposal of Title Suit No. 353 of 2014, pending before the learned 2nd Civil Judge (Junior Division) at Sealdah.
The petitioners filed the suit, Title Suit No. 353 of 2014, against Sefali Saha, Jhantu Saha and the opposite parties, before the learned 2nd Civil Judge (Junior Division), (hereinafter referred to as "the first suit") claiming a declaration that they are the tenants under the defendant no. 1, Sefali Saha, in respect of the suit properties described in schedule "A" and schedule "B" to the plaint and that the defendant nos. 2, 3 and 4, that is, the present opposite part nos. 1 and 2 and Jhantu Saha have no right, title and interest over the schedule "A" and schedule "B" properties, decree for delivery of vacant, peaceful possession of the schedule "A" suit property and a decree for permanent injunction restraining the defendants from interfering with their vacant, peaceful possession of the schedule "B" suit property. In the plaint filed in the first suit it is alleged by the petitioners that in terms of a tenancy agreement dated November 28, 2013 between themselves and the defendant no. 1 Sefali Saha they are the tenants in respect of three rooms, along with right of user of common bathroom and privy on the ground floor of Premises No. 14/C Lokenath Bose Garden Lane, P.S. Topsia at a monthly rental of Rs. 500/-. They alleged to have paid a refundable sum of Rs. 6,00,000/- to the defendant no. 1 and/or her nominee, the defendant no. 4 Jhantu Saha. The petitioners further alleged that although they are the tenants under the defendant no. 1, Sefali Saha in respect of the three rooms, but they were delivered possession of only two rooms, being the schedule "B" suit property and in spite of they paying the monthly rent of Rs. 500/- to the defendant no. 1 possession of the third room, being schedule "A" suit property has not been delivered to them and the defendant nos. 2 and 3, the present opposite parties are threatening and intimidating them to vacate the schedule-"B" suit property.
In November, 2014 the present opposite parties filed Title Suit No. 146 of 2014, against the petitioners, before the learned Civil Judge (Senior Division) at Sealdah (hereinafter referred to as "the second suit"), claiming a decree for eviction and recovery of khas possession of the suit property, that is, the two rooms which is the same as schedule "B" of the first suit. In the plaint filed in the second suit, it is the case of the present opposite parties that they are the joint owners of the Premises No. 14C, Lokenath Bose Garden Lane and the petitioners, the defendants in the suit, are the licensees in respect of the suit property, that is, the two rooms of the said premises without any licence fee who were allowed to occupy the said two rooms till the last day of April, 2014 but even after expiry of the month of April, 2014 the defendants petitioners did not quit and vacate the suit property. The present petitioners, as the defendants are contesting the said second suit, they filed their written statement and on the date fixed for evidence of the plaintiffs' witness in the second suit, the petitioners filed the application under Section 10, read with Section 151 of the Code, praying for stay of all proceedings of the second suit which was rejected by the learned Court below by the impugned order. The learned Court below held that the principal issue involved in the second suit is, whether the plaintiffs are entitled to obtain the decree for recovery of possession against the defendants as licensees under them in respect of the suit property, which cannot be adjudicated in the first suit by the learned Civil Judge (Junior Division), 2nd Court, Sealdah. According to the learned Court below, the relationship of the defendants in the second suit with Sefali Saha, the defendant no. 1 in the first suit, as tenants and landlords in respect of the three rooms, being schedule "A" and schedule "B" properties of the first suit is not the matter of adjudication directly and substantially in the second suit, although it may be a matter of adjudication collaterally and incidentally involved in the second suit on the perspective that the said Sefali Saha is the mother of the plaintiffs in second suit and the defendants in the second suit took such plea in the written statement.
Assailing the impugned order passed by the learned Court below Mr. Sourav Sen, learned advocate appearing for the petitioners in this revisional application submitted that in the first suit the petitioners have claimed tenancy in respect of the three suit rooms under the mother of the present opposite parties and consequential relief in respect of the suit property, while the present opposite parties in the second suit claimed themselves to be the owners of the suit property and that the present petitioners, the defendants in the suit are trespassers. According to him, the main issue to be decided between the parties is whether the plaintiffs in the prior suit are tenants in respect of the suit premises validly inducted and if the same is proved in favour of the plaintiffs in the prior suit, the later suit cannot be proceeded with inasmuch as the present petitioners can only be evicted only on the grounds mentioned in Section 6 of the West Bengal Premises Tenancy Act, 1997. Mr. Sen strenuously contended that it is settled law that an application under Section 10 of the Code can be filed at any stage and the test to be applied in deciding the said application is whether the matter in the later suit will be res judicata if the earlier suit is taken to have been decreed in the manner as prayed in the plaint of later suit. In support of such contention, he cited the decision of a learned Single Judge of this Court in the case of Life Pharmaceuticals (Pvt.) Ltd. vs. Bengal Medical Hall reported in AIR 1971 Cal 345. Referring to two further Single Bench decisions of this Court in the cases of Ashok Kumar Yadav vs. Noble Designs Pvt. Ltd. reported in AIR 2006 Cal 237 and Prism Entertainment Pvt. Ltd vs. Prasad Productions Pvt. Ltd., Mr. Sen also contended that for determining whether the matter in issue in the subsequently instituted suit is directly and substantially in issue in the previously instituted suit absolute identity of the parties in both the suits is not a consideration. It was lastly contended that as per the principles of law laid down by the Supreme Court in the case of Chitivalasa Jute Mills vs. Jaypee Rewa Cement reported in AIR 2004 SC 1687 the learned Court below ought to have consolidated both the suits by invoking its inherent power under Section 151 of the Code. On these grounds, it was urged on behalf of the petitioners that the learned Court below fell into an error of law in rejection their application under Section 10 read with Section 151 of the Code.
On the contrary, Mr. Sabyasachi Bhattacharya, learned Senior Advocate opposing the revisional application on behalf of the opposite parties strongly contended that the impugned order passed by the learned Court below suffers from no infirmity. According to him, the scope of the two suits are entirely different. It was urged that the first suit filed by the petitioners is for declaration of their alleged tenancy in respect of three rooms under Sefali Saha, the defendant no. 1 in the suit and for possession of one additional room in terms of the alleged tenancy agreement between Sefali Saha and themselves. According to Mr. Bhattacharya in the first suit the present petitioners claimed specific performance of the said alleged tenancy agreement when they claimed decree for delivery of vacant and peaceful possession the additional one room described in schedule "A" to the plaint, whereas in the second suit the present opposite parties as the plaintiffs have claimed decree for eviction of the present petitioners from the suit property comprising two rooms describing the latter as the trespassers, where they claim joint title by purchase, absolutely independent of Sefali Saha. It was thus argued that the two suits operate in entirely different fields so to say and have no effect on each other, even none of the substantive issues are common and different yardsticks are to be proved in each case and the evidence in each suit has to be different from the other. It was submitted that the decisions of this Court in the case of Life Pharmaceuticals (supra), Ashok Kumar Yadav (supra) and Prism Entertainment Pvt. Ltd. (supra) have no application in the case in hand. Citing the decision of the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences vs. Parameshwara reported in AIR 2005 SC 242 it was strongly contended that it is settled law that Section 10 of the Code applies only in cases where the whole of the subject matter in both the suits is identical.
It was next submitted by the opposite parties that the two suits are pending before different forums, the second suit of the opposite parties are pending before the Civil Judge (Senior Division) at Sealdah and the petitioners' first suit is pending before the learned Civil Judge (Junior Division), Second Court at Sealdah, the latter Court being of less pecuniary jurisdiction than the former Court. The two suits are at different stages, while the trial of the second suit of the opposite parties has already commenced, the petitioners' first suit is only at the injunction hearing stage. It was also submitted that the parties in the two suits are not same inasmuch Sefali Saha, the principal defendant in the first suit of the petitioners is not a party in the second suit for eviction filed by the opposite parties. Urging all these facts, it was submitted on behalf of the opposite parties that there is no infirmity in the impugned order passed by the learned Court below in rejecting the petitioners' application under Section 10 of the Code and the present revisional application lacks merit.
I have carefully considered the facts of the case and the arguments advanced by the learned advocates appearing for the respective parties. From a reading of Section 10 of the Code it appears three essential conditions that are necessary for bringing in the operation of said section are : (1) that the matters in issue in the second suit is directly and substantially in issue in the previously instituted suit, (2) that the parties to both are same or their representatives litigating under the same title, and (3) that the Court, in which the first suit is instituted, is a Court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit.
In order to understand and construe the words "the matter in issue" appearing in Section 10 of the Code it is appropriate to quote the following statement of Sir Ashutosh Mookerjee in the case of Bepin Behari vs. Jogendra Chandra reported in AIR 1917 Cal 243 at page 249.
"What then is the meaning of the expression 'the matter in issue.' The defendants invite us to hold that the expression is equivalent to 'any of the questions in issue.' The obvious answer is that if that had been the intention of the framers of the section, appropriate words might have been used to bring out such sense. We are of opinion that the expression 'the matter in issue' has reference to the entire subject in controversy between the parties. The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue."
The expression, "matter in issue" in Section 10 has reference to entire subject matter in controversy between the parties and more identities of some of the issues in both the suits is not sufficient to attract Section 10 and unless the decision of the suit operates as res judicata in the other suit, it cannot be said that the matter in issue is directly and substantially the same in both the suits, that is to say, the decision in one suit must non-suit the other before it can be said that the matter in issue in both the suits are directly and substantially the same.
Even in the case of National Institute of Mental Health & Neuro Sciences (supra), the Supreme Court held that the object underlying Section 10 of the Code is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, between the same parties and the fundamental test to attract the said section is whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. The Court further held that Section 10 of the Code applies only in cases where the whole of the subject matter in both the suits are identical. It was also held that the key words used in Section 10 are "the matter in issue is directly and substantially in issue" in contradistinction to the words 'incidentally or collaterally in issue" and, therefore Section 10 of the Code would apply only if there is identity of the matter issue in both the suits meaning thereby, that the whole of subject matter in both the proceedings is identical.
Further, another object underlying the provision of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. One of the pre-requisites of Section 10 of the Code is that the Court. In which the first suit is instituted, is a Court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit. An authority for this view can be found in the Division Bench decision of this Court in the case of Kalipada Banerjee vs. Charubala Dasee reported in AIR 1933 Cal 887.
Applying the above tests laid down by the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences (supra) and the Division Bench decisions of our Court in the cases of Bepin Behari (supra) and Kalipada Banerjee (supra), let us consider whether in the present case the petitioner made out a case to succeed in his application under Section 10 of the Code. From the facts of this case as already discussed above, it is clear in the first suit filed before the learned 2nd Civil Judge (Junior Division), Sealdah, the petitioner has claimed the principal relief for a declaration that he is a tenant of three rooms described in schedule "A" and schedule "B" to the plaint under the defendant no. 1 Smt. Sefali Saha, and a decree for delivery of vacant possession of the third room described in schedule "A" to the plaint, but in the second suit where the said Sefali Saha is not party, the opposite parties claiming to be the owners of the two rooms of premises no. 14C, Lokenath Bose Garden Lane has alleged the present petitioner to be a licensee under them in respect of the same two rooms and has claimed a decree for eviction of the present petitioner from the said rooms. Therefore, to my mind it is clear that in the present case, in the absence of Sefali Saha and Jhantu Saha in the second suit not only there is lack of identity of the parties in both the suits and there is also lack of identity of the matter in issue in both the suits. Further, undisputedly the pecuniary jurisdiction of the learned Civil Judge (Junior Division), 2nd Court, at Sealdah does not permit the said Court to the grant relief claimed in the second suit valued at Rs. 25,500/- for eviction and recovery of khas possession at Rs. 36,500/- for damages. Therefore, in the present case, the petitioner could not meet the essential tests for maintaining an application under Section 10 of the Code. In the facts of the present case, none of the decisions of this Court in the cases of Life Pharmaceuticals (Pvt.) Ltd. (supra), Ashok Kumar Yadav (supra) and Prism Entertainment Pvt. Ltd. (supra) renders any assistance to the petitioner.
Further, in the instant case when the petitioner prayed for stay of trial of the second suit under Section 10 of the Code, the decision of the Supreme Court in the case of Chitivalasa Jute Mills (supra) laying down the principle of law of consolidation of suits has no application in this case.
For all the foregoing reasons, I do not find that the learned Court below committed any error of law to reject the application filed by the present petitioner under Section 10 of the Code. Accordingly, the revisional application, C.O. 4625 of 2016 stands rejected.
However, there shall be no order as to costs.
Let urgent certified copies of this judgment, if applied for, be made available to the parties upon compliance with all requisite formalities.
[Ashis Kumar Chakraborty, J.]