SAMI Vs. SMT. PUSHPA DEVI AND 8 ORS.

JUDGEMENT

(1.) Heard Sri Promod Kumar Sinha for the petitioner and Sri K. Ajit for the respondents.

(2.) This petition has been filed for setting aside the order of Civil Judge (Junior Division) dated 29.4.2014 rejecting the application of the petitioner for staying the proceeding of Suit i.e. O.S. No. 427 of 1991 under Sec. 10 C.P.C. during pendency of Second Appeal No. 2571 of 1979 (arising out of O.S. No. 571 of 1973) before this Court and the order of Additional District Judge dated 10.3.2016 dismissing the revision of the petitioner filed against the aforesaid order.

(3.) The contention of the counsel for the petitioner that earlier Ram Das and others (predecessors of the plaintiffs in O.S. No. 427 of 1991) filed a suit (registered as O.S. No. 571 of 1973) raising dispute relating to easementary right over passage in dispute. In this suit the petitioner was impleaded as defendant-4. The trial court also framed an issue to the effect that whether defendants - 3 to 6 have any right over the passage in dispute, and if so, its effect? As in this suit defendants - 3 to 6 had claimed their easementary right over the passage. While deciding this issue, trial court in its judgement dated 5.1.1977 found that godown of Nanhe Bhai (father of the petitioner) situate inside the gali and after his death his heirs were owner of godown. Now the present suit has been filed showing the petitioner as tenant of the aforesaid godowns. Although this issue as to whether the petitioner was tenant or owner, has already been decided in O.S. No. 571 of 1973 and Second Appeal No. 2571 of 1979 is pending. Thus the present suit is liable to be stayed under Sec. 10 CPC. However the court below has wrongly rejected the application of the petitioner. He relied upon the judgement of this Supreme Court in Commissioner of Endowments and others Vs. Vittal Rao and others, (2005) 4 SCC 120 , in which it has been held that one test 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 judgement was in fact based upon that decision then it would be res judicata in a letter case. In the present matter O.S. No. 571 of 1973 is pending at the stage of second appeal, thus instead of res judicata principal of Sec. 10 C.P.C. will apply and suit is liable to be stayed.