Madhya Pradesh High Court
M/S Mohan Iron Traders vs Smt. Rashida Bano on 22 September, 2014
1
W.P. No.4220/2014
22.9.2014
Shri Yogesh Mittal learned counsel for the petitioners.
Shri S.P. Joshi, learned counsel for the respondent.
Heard finally with consent.
This writ petition under Article 227 of the Constitution of India is at the instance of defendants tenants challenging the order of trial court dated 10/4/2014, whereby the petitioner's application under Section 10 of CPC has been rejected.
In brief, the respondent has filed the suit for eviction and for arrears of rent against the petitioners. The petitioners have also filed another suit for specific performance of contract in respect of same property on the basis of agreement dated 9/9/2009. In the suit for eviction filed by respondent, the petitioners had filed an application under Section 10 of CPC seeking stay of proceeding in the eviction suit till the petitioner's suit for specific performance is decided. The said application was opposed by respondent and it has been rejected by the trial court by the impugned order.
Having heard the learned counsel for parties and on perusal of the impugned order, it is noticed that the trial court has rejected the application under Section 10 of CPC on the basis that the matter in issue in two suits is different. Though the parties in the two suits are the same but the matter in issue in both the suits is different and the scope of two suits is also 2 different. In the suit for specific performance, the petitioners are seeking execution of sale deed on the basis of agreement dated 9/9/2009, whereas the eviction suit has been filed by the respondent on the ground of bonafide need, causing damage to the property, the purchase of another premises by respondent and arrears of rent. Since the matter in dispute in the suit for specific performance is not directly and substantially an issue in the suit for eviction, therefore, the trial court has not committed any error in rejecting the petitioner's application under Section 10 of CPC.
This court in the matter of Bhagwandas Parsadilal Vs. Surajmal and another, reported in AIR 1961 MP 237 in similar circumstances has held that when a tenant continues in possession in his capacity as tenant and not in part performance of contract and the suit for specific performance against the owner is filed then in the suit for eviction, the tenant cannot setup prior agreement to sell as valid defence to suit. The Supreme court in the matter of D.S. Parvathamma Vs. A.Srinivasan, reported in 2003(II) MPWN 214 while approving the said judgment has held that having entered into possession as a tenant and having continued to remain in possession in that capacity, he cannot be permitted to say that by reason of the agreement to sell his possession was no longer that of a tenant. These judgments are relevant in support of respondent's 3 submission that the proceedings in the suit for specific performance are different from the eviction proceedings.
Counsel for petitioner has placed reliance upon judgment of Nagpur High court in the matter of The Laxmi Bank Ltd. Akola and others Vs. Harikisan and others, reported in AIR (35) 1948 Nagpur 297 but in that case it is held that it is enough that subject matter of subsequent suit is covered by previous suit but in the present case, it has not been pointed out that the subject matter in issue in the subsequent suit is covered by the previously instituted suit.
Counsel for respondent has also placed reliance upon the judgment of this court in the matter of Poonamchand Vs. Murti Madanmohanji and others, reported in 2007(3) MPLJ 340 but that was a case where it is found that the identity of the jurisdiction, subject matter of suit and parties to the litigation were substantially the same but that is not the present case. He has also placed reliance upon the Division Bench judgment of this court in the matter of Rajesh Singh and others, Vs. Manoj Kumar, reported in 2009(4) MPLJ 458, but in that case, it has been held that whole of the subject matter in both the proceedings should be identical for attracting Section 10 of CPC. In that case, after filing the suit for declaration, the eviction suit was filed by the landlord seeking eviction under Section 12(1)(a),
(c) and (n) of the MP Accommodation Control Act and this Court 4 had held that the question of title was not directly in issue in subsequent suit and had affirmed the order of the trial court dismissing the application under Section 10 of CPC. In the present case, the suit filed by petitioners is not for declaration but for specific performance of contract therefore, he is not entitled to benefit of said judgment of the Division Bench.
Counsel for petitioner has placed reliance upon the judgment of the Supreme court in the matter of R. Kanthimathi and other Vs. Mrs. Beatrice Xavier reported in 2001 AIR SCW 2369 but that is not the judgment on Section 10 of CPC and in that case after passing of the decree of eviction as affirmed in second appeal, the tenant had raised an issue about non existence of landlord tenant relationship after execution of the agreement to sell and receipt of the substantial portion of sale consideration but the present case stands on different factual footing, therefore, the petitioner cannot be granted the benefit of said judgment. Counsel for petitioner has also relied upon judgment of this court in the matter of Dadolwa W/o late Samayala and another Vs. Ramakant S/o Ralakhan Brahmin and others, reported in 2013(4) MPLJ 614, where it has been held that one of the test for invoking Section 10 of CPC is as to whether decision of the former suit will operate as resjudicata in subsequent suit but he has failed to point out that the said test is proved in the present case.
5As against this, counsel for respondent has rightly placed reliance upon judgment of this court in the matter of Shashi Pandey Vs. B.K. Choubey, reported in 2008(4) MPLJ 507, wherein it has been held that the application under Section 10 of the CPC what has to be appreciated is whether the matter in both the suits and particularly in a subsequent suit is "substantially in issue" so that the subsequent suit has to be stayed.
In the aforesaid circumstances, I am of the opinion that the order which has been passed by the trial court does not suffer from any error much less the jurisdictional error, therefore, no case for interference is made out. The writ petition is accordingly dismissed.
C.C. as per rules.
(Prakash Shrivastava) J U D G E BDJ