MOHD ASLAM Vs. SPECIAL JUDGE E C ACT

JUDGEMENT

(1.) R. K. Gulati, J. The petitioner is a tenant of the premises No. 52/36-A, Nai Dal Mandi, Kanpur Nagar on a monthly rent of Rs. 200. The second respondent is one of the co-owner and landlady of the aforesaid house.

(2.) IN the writ petition, it is asserted that the landlady with an evil design was adamant to demolish the construction in the occupation of the petitioner and the accommodation on the first and second floors of that building. The petitioner filed a suit before the competent Civil Court seek ing the relief for permanent injunction restraining the landlady, the second respon dent, from demolishing the accommodation under the tenancy of the petitioner, and further not to evict the petitioner forcibly from the said accommodation. It is said that the trial-court granted an interim injunc tion on 9th October, 1990. However, the accommodation on the first and second floor which existed in the said house, it is said, was demolished by the landlady and the malwa of about 5 to 6 trucks was left on the roof of the accommodation under the tenancy of the petitioner. The petitioner moved the concerned court for a direction to the landlady to remove the malwa, and an order to that effect was passed. Against that order the landlady preferred an appeal which was also dismissed, and thereafter a writ petition was filed before this Court, which is still pending decision before this Court.

(3.) I have considered these submissions carefully. Whether the application under Section 21 of the Act was made with ulterior purpose and was thus not maintainable, is a question which is the subject- matter of ap peal in which the impugned order was passed. It would not be proper for this Court to express any opinion on that matter lest it prejudices the cause of either party. Now coming to the question whether Section 10 of the Civil Procedure Code was available to the petitioner, it may be observed that the provisions of that Section come into play when the conditions envisaged under those provisions are made out. Section 10 of the C. P. C. , inter alia, provides that no court shall proceed with the trial of any suit in which the matter in issue is also directly and sub stantially an issue in a previous instituted suit between the same parties, or between the parties they or any or them claim litigat ing under the same title and such previously instituted suit is pending either in the same court or in any other court in India com petent to grant the same relief. In other words, the court in earlier suit should be competent to grant relief in the subsequent suit. The purport and the scope of Section 10 is to avoid conflict by judicial decisions in respect of the same subject matter involved in different suits filed by and between the same parties. The expression 'matter in issue' employed in Section 10 refers to the subject- matter in dispute and it has refer ence to the entire subject-matter of con troversy between the parties. To put it dif ferently, the substratum of controversy, namely, the substance of the matter in- con troversy should be identical. One of the test for the application of Section 10 of C. P. C. is whether the decision is previously instituted suit will operate as res judicata in the sub sequent proceedings. Section 10 would not come into play where there is material dif ference in the two suits about the subject matter on which the contesting parties are at issue.