Patna High Court
Anant Ram And Anr. vs Mahesh Prasad Thathera And Anr. on 6 September, 1983
Equivalent citations: AIR1984PAT161, AIR 1984 PATNA 161
ORDER Ashwini Kumar Sinha, J.
1. This is a plaintiffs' application against an order dated 12-10-82 by which the court below has stayed further proceedings in Title Suit No. 13 of 1981 till the disposal of First Appeal No. 424 of 1982 pending in this Court.
2. Defendant No. 2 had filed Title Suit No. 48 of 1980 in the court of Additional Sub. Judge I, against the present plaintiff-petitioners and the original owner of the house in question through whom the defendant No. 2 (plaintiff in Title Suit 48 of 1980) and the present plaintiff-petitioner claim title in the subject matter. Title Suit 48 of 1980 filed by defendant No. 2 was a suit for specific performance, of contract on the basis of baibeyana. That title suit which was filed earlier was dismissed. The plaintiff of that suit (defendant No. 2 in the present suit) has preferred First Appeal 424 of 1982 in this Court which is pending.
3. The present plaintiffs-petitioners filed Title Suit 13 of 1981 and admittedly this was a subsequent suit. This suit filed by the petitioners is against defendants-opposite party and the petitioners had prayed for eviction of the defendants on the ground of arrears of rent and also on the ground of personal necessity. The plaintiffs-petitioners claim to have purchased the house in question through two registered sale deeds dated 20-5-80 from one Paras Nath, the original owner of the house. The defendants-opposite party were already there in the house as tenants from before the purchase by the petitioners of the house in question. The petitioners' case in the present suit is that by purchase of the house the petitioners became the landlords and as they needed the house for their personal necessity and as the defendants-opposite-party defaulted in payment of rent, the petitioners were compelled to file the instant suit, as the defendants-opposite-party did not vacate the suit premises.
4. The defendants-opposite-party filed a petition in the present suit (Title Suit 13 of 1981) filed by the petitioners under Section 10 read with Section 151 of the Civil P. C., stating therein that the title of the plaintiffs-petitioners in Title Suit 13 of 1981 is a matter in issue directly and substantially in Title Suit 48 of 1.980 filed by defendant No. 2 (dismissed by the trial court and first appeal pending in this Court). The defendants-opposite-party in their application also stated that the parties were the same claiming title from the same vendor and that the decision in the former suit will operate as res judicata in the present suit. In those circumstances the defendants-op-posite-party prayed for the stay of the subsequent suit. i. e., stay of further proceedings in Title Suit 13 of 1981 filed by the present plaintiffs-petitioners.
5. The plaintiffs-petitioners filed a rejoinder to the aforesaid application of the defendants. The present petitioners also filed another application contending that the application filed by the defendants-opposite-party has become infructuous as the earlier Title Suit 48 of 1980 filed by defendant No. 2 had already been dismissed by the trial court on 30-6-82. To this application filed by the plaintiffs-petitioners the defendants-opposite-party also filed a rejoinder.
6. The court below has held that the subject matter of both the suits is the same and that the matter in issue of both the suits are also substantially the same and in that view of the matter the application filed by the defendants-opposite-party for the stay of Title Suit 13 of 1981 was allowed. As against that order the present plaintiffs-petitioners have moved this Court in the instant application.
7. As already stated above, the earlier suit filed by defendant No. 2 (Title Suit 48 of 1980), which was dismissed by the trial court on 30-6-82 and as against which the defendant No. 2 has filed First Appeal 424 of 1982 and which is still pending disposal in this Court, is only a suit for specific performance of contract against the original owner. It is true that the present plaintiff is also a party in that suit. In that suit the only issue to be gone into is whether the original owner had agreed to sell the house in favour of defendant No. 2 (plaintiff of Title Suit 48 of 1980) and whether the plaintiff of that suit is enti-
tied to get a decree for specific performance of contract on the basis of the bai-beyana. No sale deed has yet been executed in favour of defendant No. 2 (plaintiff of Title Suit 48 of 1980). Hence the defendant No. 2 (plaintiff of Title Suit 48 of 1980) is yet to acquire title in the house in question even if the first appeal filed by him in this Court is allowed. Thus the question of title is not involved in the earlier suit filed by defendant No. 2 (plaintiff of Title Suit 48 of 1982).
8. The subsequent suit filed by the plaintiffs-petitioners is purely a suit for eviction of the defendants on the ground of personal necessity and arrears of rent. The matter in issue in the earlier suit and in the subsequent suit, in my opinion, is not the same. In my opinion, the matters in issue in both the suits are neither directly nor substantially the same. It is well settled that for determining whether or not the matter directly and substantially in issue in the former as well as subsequent suits is the same, the test to be applied is whether adjudication of the matters directly and substantially arising in the former suit will decide not merely that suit but will also operate as res judicata in the subsequent suit between the parties and not whether the cause of action or reliefs claimed are the same . nor whether one of the issues arising in both the suits is the same. It is desirable to quote Section 10 of the Civil P. C. here which runs as follows:
"No Court shall proceed with the trial of any suit in which the matter in issue is also 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 where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court."
This section does not deal with the maintainability of the suit. It only provides that the trial of a suit filed subsequently shall be stayed, if in a previously instituted suit between the same parties the matter in issue is directly and substantially the same. The fact in issue in the suit filed by defendant No. 2 (i. e., Title Suit 48 of 1980) was whether the original owner had entered into a contract for the sale of the house in favour of defendant No. 2 and whether the defendant No. 2, in law, can get a decree for specific performance of contract as against an original owner; whereas the matter in issue in the subsequent suit, filed by the present petitioners, (i. e., Title Suit 13 of 1981) is only this as to whether the plaintiffs-petitioners need the house for their personal necessity and whether the defendant-opposite-party have defaulted, in the eye of law, in payment of rent. Therefore, in my opinion, the cause of action also in the two cases is not the same. The matter in issue is neither directly nor substantially the same. In that view of the matter, I hold that on the facts of the instant case, the defendants-opposite-party could not take the help of Section 10 of the Code.
9. In the view that I have taken above, I hold that the court below in staying further proceedings in Title Suit 13 of 1981 has acted illegally in the exercise of its jurisdiction and has also acted with material irregularity. I further hold that even if the order is not allowed to stand, it will not cause any prejudice to the defendants-opposite-party as in the event of the defendants-opposite-party winning the first appeal pending in this Court and thereafter acquiring title in the house in question if the sale deed is executed by the original owner, the defendants-opposite-party will have right to enforce their legal remedies available to them against the plaintiff-petitioners.
10. In the result, the application is allowed and the impugned order is set aside, but in the facts of the case, there will be no order as to costs.