Madhya Pradesh High Court
Prakash Chand Soni vs Anita Jain on 9 January, 2002
Equivalent citations: 2002(2)MPHT424, 2002 A I H C 1594, (2002) 2 MPLJ 121 (2002) 2 MPHT 424, (2002) 2 MPHT 424
ORDER S.P. Khare, J.
1. This is a revision by the defendant against the order by which his application under Section 10, CPC for stay of the suit has been rejected.
2. Defendant Prakash Chand Soni was tenant of Kesharbai in a portion of house No. 303, Golganj, Chhindwara. She has sold this house to plaintiff Anita Jain by registered sale-deed dated 14-6-1995. She has filed the present Civil Suit No. 53-A of 1998 for eviction of the defendant on 13-1-1997 under various clauses in Section 12 (1) of the M.P. Accommodation Control Act, 1961. The defendant claims that Kesharbai by Agreement dated 17-5-1995 had contracted to sell this house to him and he has instituted Civil Suit No. 16-A of 1997 on 12-2-1997 in the Court of Ist Additional District Judge, Chhindwara for specific performance of the contract of sale against Kesharbai and the present plaintiff Anita Jain. In the eviction suit the evidence of both the sides has been recorded. In the suit for specific performance of contract the evidence has not yet commenced and it has been consolidated with another Civil Suit No. 1-A of 1999 filed by Anil Kumar against Kesharbai. The defendant submitted an application under Section 10, CPC in the eviction suit for stay of its proceedings until the decision of his suit for specific performance of contract and that has been rejected by the Trial Court.
3. After hearing the learned counsel for both the sides and after going through the case law on this point this Court is of the opinion that the impugned order is correct. The suit for specific performance has been filed subsequent to the previously instituted eviction suit and, therefore, Section 10, CPC does not of its own force apply to the present case. That is fairly conceded by the learned counsel for the petitioner. He has however, argued that the trial of the suit can be stayed under Section 151, CPC and he has placed reliance on the decision of this Court in S.C. Bharat v. J. Jacob, 1977 JLJ-SN 82. On the other hand it is argued that the matter in issue in the suit for specific performance is not "directly and substantially in issue" in the suit for eviction. It is submitted that plaintiff Anita Jain has acquired title to the house on the basis of registered sale-deed executed by Kesharbai, who was admittedly the landlord of the defendant, and, therefore, as per Section 109 of the Transfer of Property Act there has been legal adornment and she is entitled to sue for eviction. The decisions in Trivenidevi v. Vijay Mohan Bose, 1976 MPLJ 163, Harikishan v. Rishi Kumar, 1982 MPWN Note 387, Kalyansingh v. Hafiz Abdul Ajij, 1979 MPWN Note 54, N.P. Tripathi v. Dayamanti Devi, AIR 1988 Patna 123 and Lachaman Nepak v. Badankayalu Syama, AIR 1989 Orissa 154, have been cited by the learned counsel for the respondent in support of the plea that the trial of the eviction suit cannot be stayed.
4. It is true that in an appropriate case not covered by Section 10, CPC the Court can stay the trial of a suit under Section 151, CPC in exercise of its inherent powers ex debito justitiae but in such a case also there must be substantial identity of the subject matter and field of controversy between the parties in the two suits and the Court must be satisfied that the continuance of the trial of the other suit would be oppressive or vexatious to the defendant and the stay would not cause injustice to the other side. In other words the trial of a previously instituted suit can also in a suitable case be stayed if the matter directly and substantially in issue in the subsequent suit is also the same in the earlier suit if such a course is really in the interest of justice. But the principles on which the question of stay of the suit under Section 151 is to be considered are the same which are applicable to the stay of the trial of the suit under Section 10, CPC.
5. The Supreme Court has pointed out in Indian Bank v. Maharashtra State Co-operative Marketing Federation, AIR 1998 SC 1952, that the object of the prohibition contained in Section 10, CPC is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a Rule of procedure and docs not affect the jurisdiction of the Court to entertain and deaf with the latter suit nor does it create any substantive right in the matters. Similarly in British India Corporation v. Rashtraco, (1996) 4 SCC 748, it has been held that if the causes of action, in the two suits are entirely different and there is no common issue "directly and substantially" in both the suits, the latter suit cannot be stayed.
6. The rule of res-judicata in Section 11 differs from res sub judice in Section 10, CPC. The former bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. Section 10 bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previously instituted suit. The words which are common in both the sections are "matter directly and substantially in issue". Therefore, for applicability of Section 10 the test is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. 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. The same principle would be attracted where the previously instituted suit is sought to be stayed through an application under Section 151, CPC on the ground of the pendency of the subsequent suit.
7. The interpretation of the words "directly and substantially in issue" in Section 10 would be the same which has been given to such words in Section 11, CPC. These have been interpreted in various decisions of the Supreme Court including the recent case in Sajjadanashin v. Musa, AIR 2000 SC 1238, in which it has been held that the test to determine whether an issue was directly and substantially in issue in earlier proceedings or collaterally or incidentally, is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res-judicata in a latter case. Which of the matters are directly in issue and which are collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue 'material and essential' for its decision.
8. In the present case the earlier suit is for eviction and the latter suit is for specific performance of contract. In the earlier suit the matter directly and substantially in issue is whether the plaintiff is landlord of the defendant and whether one or more of the grounds for eviction under Section 12(1) of the M.P. Accommodation Control Act is established. The previous owner was admittedly the landlord of the defendant and she has executed registered sale-deed in favour of the plaintiff and on that basis she can claim to be the landlord of the suit accommodation. In that case it is unnecessary to decide the question whether there was prior agreement of sale by the previous owner in favour of the defendant. That question would be "material and essential" in the subsequent suit for specific performance of contract where it would be decided whether the alleged agreement of sale is true and genuine, whether the vendee was ready and willing to perform his part of the contract and whether the subsequent transferee had notice of the earlier agreement and if all the ingredients necessary in a suit for specific performance of contract are found established a decree would follow and then a sale-deed would be executed and registered either by the parties or on their failure by the Court and thereafter the vendee would acquire title to the property in dispute. It is thus clearly discernible that there is no substantial identity of the subject matter and field of controversy between the parties in the two suits. The matter directly and substantially in issue in the eviction suit is not the same in the suit for specific performance of contract. The issue relating to the agreement of sale and its enforceabifity against the vendor and subsequent transferce is not "necessary" in the eviction suit. That is not "material and essential" for the decision of that suit. That suit can be decided without determining this question. Therefore, it is manifest that the matter in both the suits is not directly and substantially the same. The eviction suit cannot be stayed until the decision of the suit for specific performance of the contract. If the plaintiff in his suit for specific performance ultimately succeeds he can get back possession of the house on the strength of his title.
9. In Trivedi Devi v. Vijay Mohan, 1976 MPLJ 163, the stay of the suit for eviction until the decision of the suit for specific performance of contract was declined on the ground that there is no substantial identity between the two suits. The matter in issue in both the suits was not directly and substantially the same. This decision was followed in Kalyan Singh v. Hafiz Abdul, 1979 MPWN Note 54. The same view was taken in Harikishan v. Rishikumar, 1982 MPWN Note 387, Lachaman v. Badankayalu, AIR 1989 Orissa 154 and N.P. Tripathi v. Dayamantidevi, AIR 1988 Patna 123. In the case of S.C. Barat v. J. Jacob, 1977 JLJ-SN 82, cited on behalf of the petitioner it was found as a fact that the main issues in both the suits were common and, therefore, the stay of the previous eviction suit under Section 151, CPC was granted. It has been demonstrated earlier that in the present case the "essential and material" issues are not common and the matter in one suit is not directly and substantially the same in the other. Therefore, the earlier eviction suit cannot be stayed.
10. The revision is dismissed.