Calcutta High Court (Appellete Side)
Steel Authority Of India Limited vs Pilani Investment & Industries Cor. Ltd on 10 May, 2012
Author: Soumen Sen
Bench: Soumen Sen
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE.
Present:
The Hon'ble Justice Soumen Sen.
C.O.2842 of 2011
Steel Authority of India Limited
Vs.
Pilani Investment & Industries Cor. Ltd.
Mr. Abhrajit Mitra,
Mr. A. Gangopadhyay,
Mr. Supriya Dubey.
....For the Petitioner.
Mr. Jayanta Kr. Mitra, Sr. Adv.,
Mr. Sabyasachi Chowdhury,
Ms. Angshumala Bansal,
Ms. Nihita Jhunjhunwala.
....For the O.P.
Heard on : 19.3.2012, 16.4.2012, 17.4.2012 & 18.4.2012.
Judgment on : 10th May, 2012.
Soumen Sen, J.
The order dated 22nd July, 2011 passed by the learned 6th Bench, City Civil Court at Calcutta in T.S.875 of 2011 in connection with application filed under Section 10 of the Code of 2 Civil Procedure by the defendant is the subject matter of challenge in this revisional application.
In or about 4th April, 2011, Pilani Investment and Industries Corporation Limited, (hereinafter referred to as 'Pilani' ) instituted a suit in the High Court at Calcutta praying for a decree for eviction and for recovery of khas possession of the suit property against Steel Authority of India Limited, (hereinafter referred to as 'SAIL').
The 'Pilani' filed a suit in this Hon'ble High Court wherein it has been averred in paragraph '7' of the plaint that the plaintiff by a notice dated 21st February, 2011 issued under Section 106 of the Transfer of Property Act duly determined the monthly tenancy of the SAIL with the expiry of the 15 days from the date of receipt of the notice and had demanded peaceful and vacant possession of the suit property. It was further stated that in spite of such notice, the defendant failed to deliver of vacant possession and instead by a letter dated 5th March, 2011 refused to deliver of such possession.
In reply to the notice to quit, SAIL contended that they are tenant of the 5th floor of the said premises for more than 35 years and as per desire of the plaintiff, the monthly rent was enhanced from time to time pursuant to mutual discussion held on diverse dates and there had been no default on the part of the 3 SAIL in tendering the rent every month. SAIL by the said reply expressed its desire to mutually resolve the said issue.
SAIL as a counter blast to the said suit instituted a suit on 29.4.2011 in the City Civil Court at Calcutta before the 6th Bench in Title Suit No.875 of 2011 praying inter alia for a decree for specific performance of the agreement in respect of the suit property and declaration that the notice to quit dated 21st February, 2011 may be adjudged void and delivered up and cancelled. The foundation of the suit filed by SAIL is the notice dated 21st February, 2011 which is explicit from the averments in paragraphs 12, 13 and 14 of the said plaint, relevant portion whereof are set out hereinbelow:-
"12. The plaintiff thereafter was surprised to receive a notice dated 21st February, 2011 purportedly under Section 106 of the Transfer of Property Act in respect of the suit premises, a copy whereof is annexed hereto and marked with the letter 'E'. The said notice is illegal, null and void for the following reasons;
a) The said notice is in breach of the valid and subsisting agreement between he parties as more fully stated in paragraph 9 above.
b) .... .... .....
c) .... .... .....
d) .... .... .....
e) ..... ..... .....
f) The said notice issued is bad in law and is
fraudulent.
The defendant has thereafter filed a suit for eviction in the High Court at Calcutta against the plaintiff most illegally.4
13. The plaintiff states that the said notice dated 21st February, 2011 is illegal, null and void and if left outstanding would cause substantial loss to the plaintiff.
14. The said notice dated 21st February, 2011 is in fact a refusal to specifically perform the said agreement as pleaded in paragraph 9 above. The said agreement is of special value to the plaintiff as because the plaintiff's Head office of the Raw Material Division is situated at the suit property. The Raw Material Division is a very important part of the plaintiff's business and there is no alternative accommodation available to the plaintiff."
The opposite party having regard to the fact that the suit for specific performance was a subsequent suit and touching and concerning the notice dated 21st February, 2011 filed an application under Section 10 read with Section 151 of the Code of Civil Procedure before the learned 6th Bench, City Civil Court at Calcutta before whom T.S.875 of 2011 was pending. In the said application for stay, it was contended that the High Court Suit being C.S.No.74 of 2011 is a prior suit and the issues arising out of the Title Suit No.875 of 2011 are directly and substantially a suit in C.S.No.74 of 2011 and accordingly, the same is required to be stayed under Section 10 of the Code of Civil Procedure.
Mr. Abhrajit Mitra, learned Counsel appearing on behalf of the petitioner submits that to attract the principle of Section 10 of the Code of Civil Procedure, there has to be a complete identity of the issues. It was argued that one of the tests required 5 to be applied in granting stay of the subsequent suit is that the decision in the prior suit would operate as a res judicata in the subsequent suit. The relief claimed before the City Civil Court is for specific performance. Any decision in the Calcutta High Court suit should not and cannot affect the suit of SAIL, which is primarily for specific performance. It was argued that the declaration as to the notice to quit in the City Civil Court suit is by itself not a decisive factor in staying the suit filed by SAIL in the City Civil Court. Any decision in the High Court suit cannot operate as a res judicata in relation to the suit pending before the City Civil Court.
In support of the aforesaid contention, he relied upon the following decisions:-
1) National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara, reported in (2005) 2 SCC 256;
2) Adhish Chandra Sinha VS. Hindusthan Gas & Industries Ltd. & Anr., reported in A.I.R. 1985 Calcutta 154;
3) Sunil Kapoor VS. Himmat Singh & Ors in CM (M) No.1215 of 2007;
4) Lachaman Nepak & Ors. Vs. Badankayalu Syama Babu Subudhi & Anr., reported in A.I.R. 1989 Orissa 154;
5) Mitra Lina Pr. Ltd. Vs. The Finlay Mills Ltd. & Anr., reported in A.I.R. 1982 Calcutta 41;
6) Krishna Kumar Damani Vs. Ramnarain Agarwal & Anr., reported in A.I.R. 1984 Calcutta 162;
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7) Karri Satyanarayana & Ors. Vs. Pichika Veerraju & Ors., reported in 1996 A I H C 2642.
Per contra, Mr. Sabyasachi Chowdhury led by Mr. Jayanta Kr. Mitra, learned Senior Counsel submitted that there is no absolute requirement of complete identity of issues in the two suits. It is argued that in terms of Section 10 of the Code of Civil Procedure, the Court is required to examine if the two suits are substantially the same. It is submitted that Section 10 speaks of same parties and it means that the parties as between whom the matter substantially in issue has arisen and has to be decided.
In relying upon Shorab Merwanji Modi & Anr. Vs. Mansata Film Distributors & Anr., reported in A.I.R. 1957 Calcutta 727, it is argued that complete identity of either the subject matter or the parties is not required. In the said decision, the contention of this Court was drawn to paragraph 33 of the said decision where Their Lordships held that the fact that one is a suit under the agreements and the other is a suit de hors the agreements does not make a substantial identity of the subject matter per se impossible. It was noticed in the said decision that the basis of the defence in the Bombay suit and the basis of the claim in the Calcutta suit appear to be both fraudulent, misrepresentation and if the defence succeeds in Bombay, 7 nothing will be left of that suit and, similarly, if in consequence the case of misrepresentation succeeds in Calcutta, this suit will be practically decided, the only, enquiry remaining being an enquiry as to the damages claimed in addition to a refund of the money paid. Similarly, again, if the defence fails in the Bombay suit, the basis of the Calcutta suit will be wholly destroyed. On such facts, the Chief Justice Chakravarti, as His Lordship then was, held that the principal matter in issue in the Calcutta suit is directly and substantially in issue in the Bombay suit, which is a suit previously instituted and that an unnecessary duplication of proceedings with the possibility of conflicting decisions being rendered would occur, if the Calcutta suit is not stayed.
On the basis of the aforesaid decision, it was argued that the common thread in both the suits is the notice to quit dated 21st February, 2011. In referring to the plaint filed in the City Civil Court and in particular, the paragraphs 7, 8 and 9 (City Civil Court), it was argued that such averments would unmistakably show that the plaintiff in order to succeed in its claim for specific performance must first succeed in obtaining a declaration in terms of prayer ('b') of the plaint which is a declaration that the notice to quit is void and required to be delivered up and cancelled. In the High Court Suit, Pilani would 8 be required to establish that the notice to quit is valid and obviously in defending the said claim of Pilani, SAIL would set up the defence of specific performance of the alleged agreement as pleaded in paragraph '9' of the City Civil Court suit. Accordingly, it is argued that the issue in the City Civil Court suit is directly and substantially an issue in the High Court suit as it concerns and revolves around the issue relating to the validity and legality of the notice to quit dated 21st February, 2011. The issue with regard to the specific performance is only incidental and is wholly dependent upon writing a judgment in favour of the SAIL with regard to the declaration that the notice to quit is void.
In reply Mr. Abhrajit Mitra submits that irrespective of the timing of filing of the suit, i.e., to say previous or later, the emphasis should be on the identity of the matters. In referring to National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara, reported in (2005) 2 SCC 256, he argued that Section 10 would apply only if there is identity of the matter in issue in both the suits meaning thereby that the whole of the subject matter in both the proceedings is identical. He has referred to paragraph '8' of the said report which is reproduced hereinbelow:-
" The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying 9 Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical."
In National Institute of Mental Health & Neuro Sciences (Supra), the Hon'ble Supreme Court was considering the applicability of Section 10 in relation to the proceedings initiated before the Labour Court under the Industrial Disputes Act, 1947 and another proceeding before the Civil Court. In the said decision, it was held as under:-
"the cause of action in filing Suit No.1732 of 1995 is the loss suffered by the appellant on account of the misappropriation of drugs by the respondent, established in the departmental enquiry against him wherefore he was also removed from service. On the other hand, in the said Writ Petition No.24348 of 2002, the management has challenged the award of the Labour Court granting reinstatement of the 10 respondent. Both the proceedings operated in different spheres. The subject-matter of the two proceedings is entirely distinct and different. The cause of action of the two proceedings is distinct and different."
In Adhish Chandra Sinha's case (Supra), it was held as under;
"In order to attract S.10 the subject-matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. In that way the subject-matter of two suits must be identical. Merely because one of the questions in issue is the same as in the other suit would not make the subject- matter identical."
In the said case, the former suit was filed by the tenant for a declaration of a tenancy right under the West Bengal Tenancy Act and permanent injunction restraining the defendant/landlord from interfering with the beneficial use of the tenancy and committing nuisance. The suit was filed just after the notice to quit was issued by the landlord and received by the tenant. The subsequent suit by the landlord was for eviction on the ground of reasonable requirement, wrongful user of premises and agreement by tenant in writing to vacate. Obviously, two suits did not involve the same subject-matter and even the principal issues involved in both the suits were not identical as substantial. It was on such facts the said observation was made by the Hon'ble Division Bench in interpreting Section 10 of the Code of Civil Procedure.
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In Lachaman Nepak's case (Supra), the earlier suit was for eviction on the ground of default whereas the later suit was for declaration that the sale deed on the basis of which the defendant claimed ownership and demanded payment of rent is invalid and for specific performance of an alleged oral agreement for sale between the petitioner and the original owner. The application was filed against an order passed by the trial Court refusing to stay the hearing of the appeal filed by the defendant against the order of eviction inter alia on the ground that a Title appeal is pending before the District Judge. It was argued before the Division Bench that the petitioners would suffer irreparable loss and substantial injury unless the eviction appeal is stayed till the disposal of the title appeal since the title appeal would be rendered infructuous. The title appeal was against the order of dismissal in relation to the suit for specific performance. The Hon'ble Division Bench found that the petitioners do not have any semblance of title to the suit premises and that a mere agreement of sale does not create any interest in or charge on such property in view of Section 54 of the Transfer of Property Act and Section 47 of the Registration Act.
Krishna Kumar Damani's case (Supra) was on Clause 13 of the Letters Patent with regard to the power of High Court to withdraw suit from Subordinate Court. In the said case, it was 12 found that in the High Court suit, the plaintiff prayed for a declaration that he was a nominee of the first defendant for purchase of premises in dispute of which the second defendant was the owner. The first defendant after receiving intimation of the filing of the High Court suit, filed a title suit in the Subordinate Judge at Alipore for eviction of the plaintiff on the ground of default in payment of arrears of rent and reasonable requirement for his own use. The plaintiff filed a petition before the High Court for withdrawal of title suit from the Subordinate Court for being tried subsequent to disposal of the petitioner's suit. In construing Section 24 of the Code of Civil Procedure, Section 20 of the West Bengal Premises Tenancy Act, 1986 and Clause 13 of the Letters Patent, it was held that on the question of merits from the facts pleaded, it appears that the main question to be adjudicated is a common one in both the suits viz., the right of the tenant to remain in possession and it is apparent that the cause of action of the plaintiff in his prior suit now pending before the High Court for specific performance of an agreement for sale will necessarily form part of his defence in so much as it affects his rights to be in possessions the premises de hors of the West Bengal Premises Tenancy Act. The said judgment could be relevant in the event any application is filed in this Hon'ble Court under Clause 13 of the Letters Patent. The 13 consideration under Clause 13 of the Letters Patent read with Section 24 of the Code of Civil Procedure and Section 10 of the Code of Civil Procedure are entirely different while in the former the High Court is exercising a power to withdraw and transfer in the later, the Court is under a duty to stay the later suit in the event it fulfils the criterian of Section 10 of the Code of Civil Procedure. It was held that the prior suit was a mare comprehensive suit and the balance of convenience is also lies in having the subsequent suit heard by this Court.
In Sunil Kapoor's case (Supra), the plaintiff sued the defendant for ejectment and for recovery of mesne profit/ damages for use and occupation. Prior to the institution of the said suit, the defendant in disputing that he was a tenant filed a suit against the plaintiffs for specific performance of agreement to sell of immovable property. The defendant in the said suit had taken a plea while defending the said suit for ejectment that the plaintiff agreed to sell the premises to him and accordingly filed an application under Section 10 of the Code of Civil Procedure for staying the suit filed by the plaintiff which is a subsequent suit. On facts, it was found that the plaintiffs even if are found to have agreed to have sold the property, the defendant would not get any right to occupy that property as an agreement purchaser since "a mere agreement to sell of immovable property does not 14 create any right in the property save the right to enforce the said agreement".
The Learned Single Judge in deciding to stay the said suit under Section 10 of the Code of Civil Procedure had taken into consideration that:
i) There was no agreement to sell in writing;
ii) The writing does not provide possession of the premises having being delivered to the defendant in pursuance to the agreement for sale;
iii) None of the receipts relied upon by the defendant reflects any intention of delivery of possession/construction possession;
iv) In view of amendment in the Stamp Act and Regulation Act, a plea of post peformance in absence of a registered document is not tenable.
In view thereof, the defendant's/tenant's suit for specific performance was not stayed.
Similar is the fact with regard to the case of Karri Satyanarayana & Ors. (Supra). In Karri Satyanarayana (Supra), the first suit was for specific performance of an oral agreement of sale and the second suit was for ejectment of party from disputed property for possession and damages. 15
Mr. Mitra relied upon the observation of the learned Single Judge in paragraphs 6 and 7, relevant portions whereof are set out below:-
"6. Section 10 provides that where a suit is instituted in a Court to which the Code applies, the Court shall not proceed with the trial of the suit, if firstly, the mater in issue in the suit is also directly and substantially in issue in a previously instituted suit between the same parties, or their privies; secondly, the previously instituted suit is pending in the same Court in which the subsequent suit is brought, or in any other Court in India (whether superior, inferior or co-ordinate), or in any Court beyond the limits of India established or continued by the Central Government, or before the Supreme Court and thirdly, where the previously instituted suit is pending in any of Courts mentioned above, such Court is a Court of jurisdiction competent to grant the relief claimed in the subsequent suit. The object of Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. It is necessary to note that for Section 10 to apply, there must be identity of subject matter. Mere fact that one of the questions in issue is the same as in the other suit, would not make the subject matter identical. The use of the definite article 'the' in 'the matter in issue' occurring in Section 10, C.P.C. suggests that the rule will not apply where only 'a matter in issue' is common.
7. The validity of the order under revision in C.R.P. No.287 of 1993 has to be examined in the light of the legal position stated above. The learned trial Judge in his order under revision has pointed out that the issues in O.S. No.105 of 1985 are not directly and substantially similar to the issues in O.S.No.145 of 1984. In support of this conclusion the learned trial Judge has pointed out in para 3 of the Order that O.S.No.145 of 1984 was for the specific performance of the alleged oral agreement of sale dated 30-11- 1964 whereas O.S.No.105 of 1985 is for ejection of the revision petitioners from schedule property, for 16 possession of the schedule property and for damages for use and occupation of the schedule property. According to the plaintiffs-respondents, the petitioners-defendants trespassed into the schedule land and therefore they are seeking their eviction and also claim consequential reliefs. As rightly pointed out by the learned trial Judge it cannot be said that the matter in issue is directly and substantially the same in both the suits. There is no doubt that certain common issues do arise in both the suits but as already pointed out supra for Section 10, C.P.C. to apply, there must be identity of subject-matter and mere fact that one of the questions in issue is the same as in the other suit would not make the subject- matter identical. If that is so, the provisions of Section 10, C.P.C. are not attracted to the facts of the case and the application filed by the defendants under Section 10, C.P.C. should be held to be incompetent. In addition to this reason, the learned trial Judge has also pointed out that the application came to be filed after the evidence on behalf of the petitioners' side was over and arguments of the plaintiffs' side were heard and after taking number of adjournments for advancing arguments on behalf of the defendant-revision petitioners. Therefore in the light of what is stated above it cannot be said that the order under revision suffers from any error of jurisdiction or material irregularity on the part of the trial Court in exercising its jurisdiction. Therefore, C.R.P. No.287 of 1993 is liable to be rejected."
This judgment also does not assist Mr. Mitra since it would be clear from the facts of the aforesaid case that the matter in issue in O.S.105 of 1985 is not directly an issue in O.S.No.145 of 1984.
The underlying object of the rule contained in Section 10 of the Code of Civil Procedure is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same 17 cause of action, the same subject-matter and the same relief. The basic purpose is to protect a person from multiplicity of proceedings as also to avoid conflict of decisions. The true intent of the said Section is that common matters in issue in two suits ordinarily be decided in a previously instituted suit. The object of the prohibition contained in Section 10 is considered in Indian Bank Vs. Maharashtra State Co-operative Mrketing Federation Ltd., reported in (1998) 5 SCC 69. The Hon'ble Supreme Court at page 72 of the said reports stated as follows:-
"The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matter in issues. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the Court to entertain and deal with the later suit nor does it create any substantive right in the matter. It is not a bar to the institution of the suit. It has been construed by the Court as not a bar of the passing of interlocutory order such as an order for consolidation of the later suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment."
The Privy Council in Annamalay Chetty Vs. Thornhill, reported in A.I.R. 1931 PC 263 observed that 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. In the words of Blackwell, J, (Durgaprasad Vs. Kantichandra, reported in 18 A.I.R. 1935 Cal. 1), the test is whether the previously instituted suit and subsequently suit were parallel, that is to say, if the first suit was determined, the question raised in the second suit would be barred by the doctrine of res judicata. In other words, if by the decision in the previously instituted suit, the subsequent suit would fail as a whole on the principle of res judicata, the subsequent suit must be stayed.
In fact, in a fairly recent decision, a learned Single Judge of the Court in Ashok Kumar Yadav Vs. Noble Designs Pvt. Ltd., reported in A.I.R. 2006 Calcutta 237 held that for determining whether the matter in issue in a subsequently instituted suit is directly and substantially issue in previously instituted suit, absolute identity of parties in both the suits is not a relevant consideration. The relevant observation of the learned Single Judge are set out hereinbelow:-
"11. The hotly debated point is whether the matter in issue in the Calcutta suit is directly and substantially in issue in the Patna suit. In my view, for answering the question in the present case, it will not be necessary to discuss the authorities cited to me in detail. There is no dispute regarding the proposition that the expression "matter in issue" shall mean (as said by the Apex Court in Mathura Prasad) (AIR 1971 SC 2355). "The right litigated between the parties, i.e., the facts on which the right is claimed or denied and the law applicable to the determination of that issue." In other words, the expression means the whole subject-matter; that is to say, the entire controversy between the parties. In my view, if the present case is tested by applying this proposition, it cannot be held that the matter in issue in the 19 Calcutta suit (the subsequently instituted suit) is directly and substantially in issue in the Patna suit (the previously instituted suit).
12. The subject-matter of the Patna suit is the agreement for sale on the basis whereof the defendant in the Calcutta suit, as plaintiff there, prayed for a decree for specific performance of contract. The power of attorney originated from that agreement. In the absence of the agreement the power of attorney simply becomes non-est; it will not have any independent existence. That is to say, unless the agreement exists, the power of attorney cannot survive. So the question of validity of the agreement is the whole controversy between the parties in the Patna suit. I have no hesitation in saying that the same controversy is the whole subject-matter of the Calcutta suit. The decree for declaration that the power of attorney stood cancelled has been sought on the ground that the sale agreement stood cancelled. The power of attorney was not an instrument capable of existence once severed from the agreement for sale, it was born out of Cl. 17 of the agreement.
13. The whole controversy in the Calcutta suit is whether it stood cancelled consequent upon determination of the agreement, as claimed by the plaintiff. Thus it cannot be said that the whole subject-matter of the Calcutta suit is not identical with the subject-matter of the Patna suit. The controversy between the parties being one and the same, I am unable to hold that the matter in issue in the Calcutta suit is not directly and substantially in issue in the Patna suit. In my opinion, the decision in the Patna suit will make the Calcutta suit absolutely useless and academic. Nothing of any substance will remain for decision in the Calcutta suit.
14. For these reasons I hold that the trial of Calcutta suit should remain stayed, and that the S. 10 application should be allowed. I accordingly allow the application, and order that till the disposal of the Patna suit trial of the Calcutta suit shall remain stayed."20
In order to attract the provision of Section 10 of Code of Civil Procedure, the following conditions are required to be fulfilled.
i) Two suits- one previously instituted and the other subsequently instituted;
ii) Matter in issue-The matter in issue in both the suits must be same meaning thereby the entire subject matter of the two suits must be same and identical. It is however, not necessary for the applicability of this Section that all the issues in the previously instituted suit must also be the issues in the subsequently instituted suit, nor it is essential that the reliefs claimed in both the suits should be identical;
iii) Same parties;
iv) Pendency of suit;
v) Same relief : it is essential that the Court in which
the first suit is pending must be competent to grant the relief claimed in that suit and also the relief claimed in the second suit (Mitra Lina Pr. Ltd. Vs. The Finlay Mills Ltd. & Anr, A.I.R. 1982 Cal. 41);
21The foundational fact in both the suits is the notice to quit. The basis of the City Civil Court suit is that by the notice to quit Pillani refused to specifically perform the agreement as pleaded in paragraph '9' of the said plaint.
It is on these principles and reminding myself of the fact that the decision with regard to the notice to quit in the High Court suit would completely non-suit SAIL in the City Civil Court suit, it can be safely concluded that the matter in issue in both the suits is directly and substantially the same. It is beyond any cavil of doubt that the declaration as to the invalidity of the notice to quit would entitle SAIL to claim other reliefs inasmuch as SAIL would be entitled to plead as a defence and by way of counter claim, specific performance in the event, SAIL is allowed to defend the suit in this High Court, as the fate of such defence is dependent upon a finding in the pending Chapter 13A application. The relief as to specific performance is only incidental and depending upon a positive declaration as to the invalidity of the notice to quit in favour of SAIL.
Mr. Mitra further submits that ideally speaking the two suits may be consolidated and analogously heard to avoid multiplicity of proceedings which however is not possible since the two suits are not pending before the same Court. It is true that the Court has inherent power to consolidate suits between 22 the same parties in which the matter in issue in both the suits are substantially the same, which however is not possible in this case in view of pendency of the suits before two different Courts. Moreover, the considerations for consolidation of suits and stay of suit under Section 10 C.P.C. are different. Unlike the discretion the Court retains and exercises with regard to consolidation of suits, the Court has no option in case it is found that common matter in issue in two suits are substantially same and once the application for stay of subsequent suit fulfils the conditions mentioned in Section 10 C.P.C.
In view thereof, the order of the learned Trial Judge is upheld and this revisional application fails. However, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be given to the learned Advocates of the parties upon compliance of necessary formalities.
(SOUMEN SEN, J.)