RAMKISHAN Vs. BAJRANGLAL

JUDGEMENT

(1.) IN this writ petition the defendant tenant has challenged the order passed by the learned trial court dated 21.8.2006 by which the application submitted by the petitioner defendant under Section 10 CPC for stay of the present suit was dismissed by the learned trial court. The brief facts which are the basis for moving of the application under Section 10 CPC by the defendant petitioner are that S.B. CIVIL WRIT PETITION NO.2103/2007 Ramkishan & Ors.Vs. Bajranglal & Anr. the plaintiff landlord had earlier filed a suit for eviction and arrears of rent against the present defendant being No.28/1991 under the provisions of Rajasthan Control of Rent and Eviction Act 1950 on the ground contained in Section 13 thereof namely the default in the payment of rent, sub letting and non user it is submitted that the said suit which was the earlier suit for dismissed by the learned trial court vide judgment and decree dated 21.10.2000 and the appeal against the same was also dismissed by the learned lower appellate court vide judgment and decree dated 01.8.2002. It has been submitted that the second appeal against the judgment and decree dated 01.8.2002 passed in first appeal has been challenged before this court in S.B. Civil Second appeal which is pending before this court. It is contended that the second appeal being the continuation of the first suit, the plaintiff landlord has instituted the present second suit on 06.4.2004 for the relief of eviction which is similar and identical to the relief claimed in the earlier suit and therefore in S.B. CIVIL WRIT PETITION NO.2103/2007 Ramkishan & Ors.Vs. Bajranglal & Anr. accordance with the provisions contained in Section 10 CPC the proceedings of the subsequent suit be stayed.

(2.) LEARNED counsel for the respondent on the other hand submitted that while the filing of earlier suit in the year 1991 and the pendency of the second appeal before this court against the dismissal of the same is not disputed, it is submitted that the Raj. Premises Control of Rent & Eviction Act 1950 was the repealed in the town where the premises is located by the Rajasthan Rent Control Act 2001 w.e.f. 01.4.2003. It is submitted that in Gangapurcity, district Sawai Madhopur the provisions of the Rajasthan Rent Control Act 2001 have not been extended and therefore the tenants do not the statutory protection of the Rent Control Legislation in the aforesaid towns and the present premises is not governed by the provisions of Rent Control Act 2001. It is submitted that the present suit has been filed under the provisions of the Transfer of Property Act 1882 by giving a notice under Section 106 of the Transfer of Ramkishan & Ors.Vs. Bajranglal & Anr. Property Act terminating the tenancy and the landlord is not required to allege or prove the existence of any of the grounds for eviction of the statutory tenant as required by the Rent Control Legislation as the contractual tenancy has expired. It is contended that the cause of action in the subsequent suit is distinct from the one in the earlier suit inasmuch as in the earlier suit the cause of action was on account of, interalia the existence of one of the ground provided under Section 13 of the repealed Act of 1950 whereas for the present suit the cause of action is the termination of the tenancy by a notice under Section 106 of the Transfer of Property Act of 1882 which was not requirement under the repealed Rent Control Act of 1950, as held by the Hon'ble Supreme Court in the case reported in AIR 1979 SC Page 1745 Dhanapal Chettiar Vs. Yesodai Ammal. He therefore submits that in the subsequent suit the matter in issue between the same parties is distinct. 4. I have heard the learned counsel for the parties and considered the matter Ramkishan & Ors.Vs. Bajranglal & Anr. Section 10 CPC reads as follows : 10. Stay of suit.- 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]. Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action. 3. The words or the Grown Representative omitted by the A.O. 1948. The question arising for consideration on the basis of the provisions of Section 10, C.P.C. is whether the matter in issue in the two suits is directly and substantially the same so as to attract the provisions of Section 10 CPC. As has been stated above while the relief claimed in both the suits is one for eviction, nonetheless the matter in issue in the Ramkishan & Ors.Vs. Bajranglal & Anr. earlier suit pertains as to whether the defendant tenant has committed default in the payment of rent under clause (a) of Sub Section 1 of Sec.13 of the Act 1950 and/or whether the defendant tenant has without the permission of plaintiff landlord sublet the premises or assigned or otherwise parted with the possession of the premises or any part of the premises without the permission of the landlord, as provided in the clause 'e' thereof and further whether the defendant tenant has without reasonable cause not used the premises for the purpose for which it was let for a continuous period of 6 months immediately the preceding the filing of the suit as provided in clause -J of Section 13 (1) of the Act of 1950. It is upon the satisfaction of the above grounds for which relevant issues have been framed which are the subject matter of the trial before the Court that the landlord plaintiff can obtain a decree for eviction of the tenant defendant. The matter in issue thus in the previous suit is whether the tenant is a defaulter, or he has sub-let the premises or whether there is non-user of the Ramkishan & Ors.Vs. Bajranglal & Anr. premises by the tenant. 5. In the present suit which has been instituted under the provision of the Transfer Property Act 1882 after repeal of the Rent Control Act of 1950 the landlord plaintiff is only required to prove that he has validly terminated the tenancy by giving a notice under Section 106 of the Transfer of Property Act as it is only a statutory tenancy. Thus in the subsequent suit which is the present suit the sole issue for consideration is whether the tenancy has been terminated validly as required by Section 106 of the Transfer of Property Act. 6. It would thus be seen that the matter in issue in the two suits is distinct and separate and not the same. In that view of the matter since the issues involved are separate the cause of action is distinct the judgment and decree in one suit would not operate as res-judicata in the other suit & there would be no possibility of any Ramkishan & Ors.Vs. Bajranglal & Anr. conflicting decrees being passed, thus the application under Section 10, C.P.C. does not satisfy the essential requirements of law for stay of the subsequent suit, in the present case. I am, therefore, satisfied that the impugned order, by which the application submitted by the defendant tenant petitioner under Section 10 CPC was rejected by the learned trial court does not call for any interference in writ jurisdiction under Article 226 of the Constitution of India. This writ petition is accordingly dismissed. The interim order is vacated. There shall be no order as to costs.