RAM PRATAP SHARMA Vs. BISHAMBHAR DAYAL

JUDGEMENT

(1.) BISHAMBHAR Dayal Sharma, the defendant-respondent of this revision, filed a suit for declaration and injunction in the year 1982 claiming that he is the owner and in possession of the property in dispute. Ram Pratap Sharma filed a second suit, in respect of the same property, for eviction of BISHAMBHAR Dayal Sharma on the ground that the latter was the tenant of the former on monthly rent of Rs. 140/- p. m. and that since he had denied his title as land lord and had committed default in payment of rent for a period of more than six months, he was liable to be evicted from the property in accordance with the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950. 2. An application under Sec. 10 of the Code of Civil Procedure was filed by BISHAMBHAR Dayal for stay of the suit for eviction filed by Ram Pratap Sharma. This application was allowed and proceedings of the suit for eviction was stayed by the Addl. Civil Judge by his order dated 2. 08. 1982. Against the said order a revision petition No. 413/82 was filed in this Court by Ram Pratap, which was allowed and the order of the trial court was set aside resulting in dismissal of the application filed by BISHAMBHAR Dayal under Sec. 10 CPC. While allowing the revision, the learned Single Judge took the view that the controversies involved in two suits were different and as such, the suit for eviction could be decided independently of the suit for declaration. Against the judgment of the learned Single Judge, an appeal No. 4355/83 was filed before the Supreme Court. The Supreme Court found that both the suits should be tried together by the same court to prevent inconvenience to the parties. Consequently, the Supreme Court passed the following order : " Accordingly, we direct the transfer of the proceedings in Civil Suit No. 21/82 from the Court of the learned Additional Civil Judge (Small Causes), Jaipur to the court of the learned Additional District Judge-I, Jaipur City. We further direct that the learned Additional District Judge shall try both the suits together, the suit for ejectment should be taken up for trial after the trial of the suit for declaration of title. The learned Additional District Judge shall try to dispose of both the suits as early as possible and at any rate not later than one year from today," BISHAMBHAR Dayal Sharma was also directed to deposit future rent at the rate of Rs. 140/- p. m. from May, 1983 on 15th day of each succeeding month. I am informed that compliance of this order is being made by BISHAMBHAR Dayal. Subsequently, suit for declaration of title and injunction filed by BISHAMBHAR Dayal was dismissed by the Add ). District Judge on 16. 03. 1992. Against the dismissal of the said suit, an appeal has been preferred in this Court, which is pending. It was thereafter that Bishambher Dayal Sharma moved an application for staying the proceedings of the suit for eviction on the ground that as an appeal had been filed against the decree passed in the title suit, the suit for eviction be not adjudicated. The contention of BISHAMBHAR Dayal, who moved this application is that the controversy involved in between the parties which was the subject matter of the two suits, referred to above, still remains undecided and as the Supreme Court had found while disposing of Civil Appeal No. 4355/83 that, "the parties are real brothers and the issues involved is substantially the same". 3. Against the rejection of the application of the plaintiff-petitioner for opening of the proceedings of his suit, the present revision has been filed. By the impugned order, the Munsif has held that

(2.) VIHY ds fu. kz; rd bl ckn dh dk;zokgh LFkfxr jgsxha** 4. Petitioner argued that the court below had committed an error of jurisdiction in staying the suit under Sec. 10 CPC because the trial of the suit for declaration of title came to an end on 16. 03. 1992. Sec. 10 CPC reads as under: " 10. No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties; or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. " Emphasis of the petitioner was that this section injuncts a court from proceeding with the trial of any suit in which a matter in issue is directly or substantially in issue in a previously instituted suit. What is said, according to the learned counsel, is, 'trial'. According to his submission, the expression 'trial*. occurring in Sec. 10 CPC means termination with dismissal of an action or determination of a suit. Petitioner urged that this expression has to be given a narrow meaning for purposes of Sec. 10 CPC in any view of the matter. It does not include an appeal which is a step after the decision of the suit. 5. In Muni Lal Vs. Sarvajeet (1) learned Judge of this Court held that an appeal is a continuation of the suit. This finds support from the decision given by the Privy Council in S. P. A. Annamalay Chetty Vs. B. A. Thornhill