RAKESH KUMAR GUPTA Vs. ASHOK KUMAR GUPTA

JUDGEMENT

(1.) Heard Sri K.G. Srivastava learned Counsel for the revisionist.

(2.) The order dated 16.9.2005 passed by the Additional District Judge, Court No. 7, Bareilly rejecting the application under Section 10, C.P.C. is Impugned in the present revision. The revisionist is tenant and he instituted a suit for injunction vide suit No. 327 of 2001, Rakesh Kumar Gupta v. Ashok Kumar Gupta and Anr. Subsequently, Ashok Kumar Gupta instituted S.C.C. suit No. 21 of 2001, Ashok Kumar Gupta v. Rakesh Kumar Gupta for a decree of ejectment against the defendant from twelve rooms of first floor situated at B.D.A. Market, Ashoka Complex, Pilibhit Road, Bareilly. S.C.C. suit was for eviction on the ground of arrears of rent. An application under Section 10, C.P.C. was filed by the revisionist/tenant bringing to the notice of the Court that since another suit No. 327 of 2001 has been instituted by the revisionist, the proceeding in the subsequent suit pending before the Judge Small Causes Court should be stayed. This application has been rejected by means of the impugned order. Submission on behalf of the revisionist is that since both the suits relate to determination of the rate of rent, therefore, the question to be decided are substantially same and the proceeding in the subsequent suit, i.e., S.C.C. suit No. 21 of 2001 is liable to be stayed. It is further submitted that impugned order rejecting the application under Section 10, C.P.C. calls for interference In exercise of jurisdiction under Section 115, C.P.C. Copy of the plaint of suit No. 327 of 2001 is annexed as Annexure-2 to the affidavit and of the S.C.C. suit No. 21 of 2001 is annexed as Annexure-1 to the affidavit filed in support of the stay application.

(3.) I have perused the two plaints. Relief claimed in suit No. 327 of 2001 is one of injunction. In paragraph No. 11(a) of the said plaint, the plaintiff has prayed for a decree against the defendant, his relatives and agents from interfering in peaceful possession of the plaintiff and also the property in tenancy of the plaintiff may not be damaged and he may not be evicted otherwise than in due process of law. Counsel for the revisionist has tried to place paragraph No. 4 of the plaint, where it was averred that the landlord is insisting for enhancement of the rent to the tune of Rs. 10,000 (Rupees ten thousand) per month. The suit filed by the landlord/respondent, is for eviction on the ground of arrears of rent, the relief claimed is altogether different. A decree for an amount of Rs. 1,20,000 (Rupees one lakh and twenty thousand) as arrears of rent, mesne profits for the period commencing from 1.3.2000 to 31.10.2001 at the rate of Rs. 6,000 per month and future mesne profits along with compensation for use and occupation at the same rate. It is thus, evident that the relief claimed in the suit pending in the Court of Civil Judge (Senior Division) Bareilly is one of injunction. Merely because the rate of rent to the tune of Rs. 10,000 (Rupees ten thousand) has been mentioned in paragraph No. 1 of the plaint. It cannot be said that the relief in both the suits is in respect of rate of rent. Cause of action in the two suits are different. The Jurisdiction vis-a-vis reliefs claimed In the two suits are different and the questions to be decided are also altogether separate. Sri K.G. Srivastava, advocate, appearing for the revisionist has placed reliance on a decision of the Apex Court in P.V. Shelly v. B.S. Giridhar AIR1982 SC 83 , (1982 )3 SCC403 . In the said case, facts are altogether different. The respondent/landlord instituted a subsequent suit for fixation of fair rent and moved an application for an interim order and the prior suit was for eviction because tenancy was determined and it was claimed that the tenant is not entitled to protection of Karnataka Rent Control Act 1961. I have perused the judgment and it is absolutely clear that in both the suits, It was for fixation of fair rate of rent and for arrears of rent. In both the suit, substantial question of rate of rent was involved, therefore, the Apex Court was of the view that the proceeding in the subsequent suit should be stayed. In the present case, the facts are different. The tenant has instituted a suit to restrain the landlord from evicting otherwise than in due process of law. Assuming the suit was decreed in favour of the tenant, the landlord would only evict the tenant in due process of law and, therefore, subsequent suit on the ground of arrears of rent was absolutely different. It cannot be said that the question involved in both the suits is substantially one and same. Counsel for the revisionist has, next, argued that the rate of rent claimed in the subsequent suit is Rs. 6,000 (Rupees six thousand) whereas the rent payable was Rs. 1,500 (Rupees one thousand five hundred), therefore, this question has to be decided in both the suits. This again is not acceptable for the reason that the previous suit is to restrain the landlord even after determining the tenancy to evict the tenant without adopting due process of law. Cause of action given in the previous suit No. 327 of 2001 is when the agents and relatives of the landlord started damaging the shop of the revisionist. Therefore, it became necessary that the landlord be Injuncted from interfering in peaceful possession and consequent eviction otherwise than in due process of law. Therefore, I am not in agreement with what has been argued by Sri Srivastava, appearing for the revisionist. Next case relied upon is Shorab Merwanji Modi and Anr. v. Mansata Film Distributors and Anr. AIR 1957 SC 727. Extract of paragraph No. 33 is being quoted below: It is true that the ground for the application of Section 10 was inaccurately stated when the learned Chief Justice was referring to the hypothetical case of the Section being applicable to the two suits. But he did not refuse an injunction on the finding that the Bombay plaintiff had an alternative remedy in Section 10 of the Code, as thought by the learned Judge, holding thereby that the subject-matter of the two suits or their 'causes of action' were identical, but he did so on the ground that the Calcutta suit was a subsequent suit and therefore it could not be stayed by an injunction and he added that the plaintiff might seek his relief in Calcutta under Section 10, if that Section applied. The only positive opinion expressed by the learned Chief Justice, was that the Calcutta suit was not a suit for the enforcement of rights under the contract, but it was a suit for avoiding the contract. He does not appear to have said anything about the nature of the Bombay suit. But assuming that he did say that the Bombay suit was a suit under the contract for the enforcement of rights conferred thereby, I am unable to see that the matter in issue in the two suits might not yet be substantially the same, though different reliefs might have been claimed by the two different plaintiffs on the basis of their respective cases. It is true that no written statement has yet been filed in the Calcutta suit, but what the defence in the Calcutta suit will be is fairly clear from the plaint in the Bombay suit itself as also the application made to this Court by Modi. If the Calcutta plaintiffs defence in the Bombay suit is substantially his plaint in the Calcutta suit and if the Bombay plaintiffs defence in the Calcutta suit is virtually his plaint in the Bombay suit, the matter in issue between the parties in the two suits would seem to be substantially the same. 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. 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, 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. In my view, 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 will occur, if the Calcutta suit is not stayed.