Bahubali Promoters Private Limited vs Shyam Sel & Power Limited on 30 January, 2019
6. Mr. Rudraman Bhattacharyya, learned counsel appearing for the plaintiff
and opposing the application submits that the previous suit filed before the
learned City Civil Court was a suit for ejectment of the defendant from the
premises in question and had been decreed in favour of the plaintiff on 22nd
September, 2015. The defendant filed an appeal from the said decree in which a
conditional order of stay was passed by the appeal court only in respect of the
stay of execution proceedings. Counsel urges that the provisions of Section 10 of
the CPC cannot apply to the instant case since the matter in issue in this suit is
not directly of substantially in issue in the previous suit as the cause of action of
eviction is entirely different from the cause of action for mesne profits. Counsel
relies on Bhartia Electric Steel Co. Ltd. Vs. Buddha Dev Bose reported in (2006) 2
CHN 1 in which a Division Bench of this court held that since the earlier suit had
been decreed only on the ground of default in payment of rent, the appellant
(defendant in that case) continued to be a tenant till the passing of a decree and
the cause of action for claiming mesne profit did not accrue when the suit was
filed for eviction as envisaged under Section 10 of the CPC.