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Vijay Kumar and ors. Vs. Manohar Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberC.R. No. 183 of 1978
Judge
Reported inAIR1979Delhi1
ActsCode of Civil Procedure (CPC), 1908 - Sections 10 and 151
AppellantVijay Kumar and ors.
RespondentManohar Lal and ors.
Appellant Advocate Sultan Singh, Adv
Respondent Advocate S.P. Mahajan, Adv.
Cases ReferredIn P.S. Kandasami Mudliar v. T.N. Ranganathan
Excerpt:
.....it was held that the expression meant the subject matter in dispute and this was applicable in the rent suits b) the case debated on power of the court to grant stay in the suit where section 10 of the civil procedure code, 1908 was not applicable - it was held that the court could enforce inherent jurisdiction for the stay subsequently with conditions - it was held that the conditions were reasonable - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed..........and mesne profits in the court of shri p.r. thakur, sub judge, delhi. it was also stated that the suit filed for recovery of rent had been stayed by the high court on the condition that the plaintiff was permitted to withdraw from the courts of rent controller and additional rent controller amounts deposited to the extent of the suit amount subject to the condition that it would be adjusted in the light of the findings on the question of alleged dispute about the tenancy in suit no.139 of 1973. it was also alleged that the cause of action in both the suits was not the same or identical. the suits related to different periods and s. 10 of the civil p.c. had no application in that situation.7. on these allegations the learned trial court found the facts as under: -'in this case, there are.....
Judgment:

1. This is a petition for revision under S. 115 of the Civil P.C. against the order of the learned Additional District Judge, Delhi dated 9-2-1978 whereby the learned trial court held that S. 10 of the Code is not applicable to the facts of the case but in the exercise of the inherent jurisdiction of the court, the trial court, however, stayed the present suit on the condition that the defendants Nos.1 to 5 should deposit in court for the period in dispute part of the amount claimed in the present suit @ Rs.371.25 per month and should furnish surety bond for the balance amount claimed in the suit.

2. The present revision petition has been filed on behalf of defendants 1, 2 and 4 and it is contended that on the facts of the case S. 10 of the Code of Civil Procedure was applicable, and, thereforee, the trial court should have stayed the suit and had no jurisdiction to impose any conditions while staying the suit.

3. The plaintiffs had filed the present suit out of which the present revision arises for the recovery of Rs.34,200/- as arrears of mesne profits for the period 1-4-1974 to 31-3-1977. The mesne profits were claimed @ Rs.950/- per month against the defendants.

4. The allegations made in the plaint were that Radhey Shyam, deceased father of defendants 1 to 5, was the tenant under Manohar Lal, plaintiff No.1, in respect of the property in dispute. The contractual tenancy of Radhey Shyam was duly terminated during his life time by serving upon him a notice of ejectment and after the expiry of the period of the notice Radhey Shyam was a statutory tenant of the premises and statutory tenancy came to an end on his death on 6-11-1972. The defendants 1 to 5 are the heirs and legal representatives of Radhey Shyam and they did not acquire any right or interest in the property on his death and their possession was that of trespassers.

5. The defendants including the petitioners contested the suit and filed an application under S. 10 and S. 115 of the Civil P.C., for stay of the proceedings of the suit alleging that there was a previously instituted suit for possession and for recovery of mesne profits at the said rate of Rs.950/- per month for the period 6-11-1972 to 5-2-1973 pending in respect of the same property as in the present suit in the court of Shri P.R. Thakur, Sub Judge, Delhi. That suit was filed on 26-2-1973. It had further been alleged that there was yet another suit being Suit No.156 of 1973 filed by Manohar Lal, plaintiff, for recovery of Rs.12,251.25 as arrears of rent for the period ending 31-10-1972 against the present defendants and the said suit in the terms of the order of this court passed on 23-3-1977 in Civil Writ No.64 of 1977 Vijay Kumar V. Manohar Lal had been stayed and would remain stayed subject to the final decision of the suit for possession and for the recovery of mesne profits by the court concerned. The suit for the recovery of rent was filed at the agreed rate of rent of Rs.371.25 while the suit for recovery of mesne profits had been filed @ Rs.950 per month. It had been alleged that in the suit for possession and for recovery of mesne profits, these defendants had filed their written statement pleading, inter alia, that Radhey Shyam, deceased, was never the tenant in his individual capacity. It was Hindu Undivided Family Firm known as 'The Steel Slate Manufacturing Co.' of which Radhey Shyam was only the Karta and the Manager and the firm throughout and still continued to be the tenant and after the death of Radhey Shyam his eldest son Vijay Kumar, defendant No.1, (petitioner No.1 herein) being the eldest male member had become Karta and Manager of the said firm and that the tenancy of the tenant firm was never determined by any notice as, required by law and that the said firm was the tenant in the premises in suit for all intents and purposes. The other defendants were occupying the premises in dispute as sub-tenant of the aforesaid joint Hindu Family firm with the consent and knowledge of the previous owner/landlord as well as of the plaintiff Manohar Lal, his successor in Interest. It had been further alleged that the entire controversy between the parties In the two suits; the suit for recovery of possession and mesne profits which was a previously instituted suit and the present suit were absolutely common and the matter directly and substantially in issue in the former suit was also directly and substantially in issue in the present suit between the parties. The decision of the present suit wholly rested on the decision of the former suit by the court concerned and the parties would be bound by the same. It was, thus prayed by the petitioners that the proceedings of the present suit be stayed as the present suit was filed subsequently.

6. The plaintiffs who are respondents Nos.1 and 2 in the present revision petition contested this application and filed written reply wherein it was admitted that the earlier suit was pending for possession and mesne profits in the court of Shri P.R. Thakur, Sub Judge, Delhi. It was also stated that the suit filed for recovery of rent had been stayed by the High Court on the condition that the plaintiff was permitted to withdraw from the courts of Rent Controller and Additional Rent Controller amounts deposited to the extent of the suit amount subject to the condition that it would be adjusted in the light of the findings on the question of alleged dispute about the tenancy in suit No.139 of 1973. It was also alleged that the cause of action in both the suits was not the same or identical. The suits related to different periods and S. 10 of the Civil P.C. had no application in that situation.

7. On these allegations the learned trial court found the facts as under: -

'In this case, there are certain facts which are admitted. An earlier suit is pending for possession and for recovery of mesne profits at the rate of Rs.950/- per month for the period 6-11-1972 to 5-2-1973. This suit was filed on 6-2-1973 and is still pending in the court of Shri P.R. Thakur, Sub Judge, Delhi. In that suit the plaintiff has alleged the defendants to be trespassers and has termed Radhey Shyam deceased as a statutory tenant and it has also been alleged that Radhey Shyam was a tenant in his individual capacity and his tenancy was terminated during his lifetime and that he became statutory tenant in his lifetime. The defendants have controverter these pleas and have stated that the tenancy was in the name of Joint Hindu Family firm of which Shri Radhey Shyam was a karta. It has been denied that Shri Radhey Shyam was a statutory tenant at the time of his death. It has been denied that the plaintiffs are entitled for the recovery of mesne profits at the rate of Rs.950/- per month. They are entitled for rent at the agreed rate of Rs.371.25. Necessary Issues on these pleas have been duly framed in the previous suit along with other issues.

It is also admitted fact and is also apparent from the copy of the order passed by Hon'ble Mr. Justice Dalip Kapur of Delhi High Court in Civil Revision No.64/77 that the suit for the recovery of Rs.12,251.25 as arrears of rent filed for the period ending 31-10-72 was ordered to be stayed on 23-3-1977 on the condition that the amount claimed in the suit, would be withdrawn by the plaintiff from the amount deposited with the Rent Controller without prejudice to the fact whether amount is due from Shri Radhey Shyam or from joint Hindu family firm. The eventual decision of this controversy will lead to an adjustment of the amount to the person, concerned in the right account.'

After coming to the aforesaid findings the learned trial court took the view that on law and facts in the previously instituted suit pending in the court of Shri P.R. Thakur and in the present suit, the matter in issue in both the suits is not directly the same.

8. Learned trial court also took the view that the matter substantially involved in the previously instituted suit and the present suit is the same as far as the questions whether the defendants were trespassers in that property or whether they were the tenants being the members of the Hindu Undivided Family and secondly whether the plaintiffs were entitled to recover mesne profits @ Rs.950/- per month or at the agreed rate of Rs.371.25 are concerned.

9. Learned trial court further held that technically speaking the provisions of S. 10 of the Code could not be made applicable but the provisions of S. 10 coupled with the provisions of S. 151 of the Code were applicable to the present case. It also took the view that the case was not covered by S. 10 of the Code and the court exercised its inherent jurisdiction under S. 151 of Civil P.C. for staying the suits but then the court could impose condition while passing the order of stay in exercise of its inherent jurisdiction.

10. In this view of the matter the learned trial court imposed the following conditions: -

'In this case, there is no dispute that the defendants/applicants have used these premises for the period for which the mesne profits have been claimed i.e. from 1-4-74 to 31-3-77. It is also not the case of the defendants/applicants that they have made the payment of this period either as rent or otherwise. By ordering the stay of these proceedings without asking the defendants/appellants even to pay the amount at the agreed rate of Rs.371.25, it would amount to injustice to the plaintiffs and so keeping in view the equity and the law and other circumstances, I hereby order that the proceedings of this suit shall stand stayed on the condition that the defendants No.1 to 5 applicants shall deposit in court the amount of the period 1-4-74 to 31-3-77 which is the period in dispute at the agreed rate of Rs.371.25 and shall furnish the surety bond of the balance suit amount to the effect that in case, it was held that the defendants/ applicants are trespasser and are liable to pay mesne profits at the rate of Rs.950/- per month they would pay the balance amount to the plaintiffs. For payment of the amount at the agreed rate of Rs.371.25 for the period 1-4-74 to 31-3-77 and for furnishing the surety bond to come up on 3-3-1978.'

11. Before adverting to the relevant provisions of law it may be noted that in the present suit there are two plaintiffs, namely, Manohar Lal and Sneh Lata Handa, Sneh Lata Handa, plaintiff No.2, claims co-ownership with Manohar Lal on the basis of a gift of a portion of the property to her and she being now a joint owner. The previously instituted suit was filed only by Manohar Lal.

The previously instituted suit claimed mesne profits for the limited period from 6-11-1972 to 5-2-1973 whereas the present suit claims, inter alia, mesne profits for the period 1-4-1974 to 31-3-1977. Thus, the causes of action for the two suits are different. It is true that three of the issues likely to arise in both the suits are same:

1. Whether Radhey Shyam deceased was a tenant and whether his tenancy was duly determined?

2. Whether the firm 'The Steel Slate Manufacturing Co.' a Hindu Undivided Family Firm was a tenant?

3. Whether the defendants were liable to pay rent and/or damages? If so at what rate?

12. The question which arises is the meaning of the words 'matter in issue' occurring in S. 10 of the Code of Civil Procedure. Sec. 10 of the Code 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 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).

Explanationn- 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.'

13. Under S. 12 of the old Act, which corresponds to the present S. 10, it was clearly held by the Full Bench of Allahabad High Court in Bal Kishan v. Kishan Lal (1889) 11 All 148 that, unless the subject-matter in the two suits is identical and the reliefs are also the same, that section would be inapplicable. The words 'for the same reliefs have been omitted from the new section and there are a few other slight alterations; but it is noteworthy that, while S. 11 provides that no Court shall try any suit or issue etc., S. 10 merely says that no Court shall proceed with the trial of any suit.

14. Another fact to be noticed is the Explanationn to S. 10 of the Civil P.C. The purpose of statutory Explanationn to a provision of statute is to explain that provision. In the Explanationn the words 'on the same cause of action' are very material and give colour to the expression 'matter in issue' occurring in the substantive part of the section. It, thus, follows that the mere fact that some issues are common in the two suits would not necessitate the stay of the subsequent suit under S. 10. Although the words 'matter in a suit' cannot be held necessarily to mean the subject matter in dispute, it seems clear that they must mean the entire matter in controversy and not one of the several issues in the case. If the intention of the legislature had been to widen the scope of S. 10 so as to make it co-extensive with S. 10 the language employed would have been identical.

15. The question whether S. 10 will be applicable where suits are filed for recovery of rent for different periods has been the subject matter of numerous decisions. Bal Kishan v. Kishan Lal decided under the old Code has already been noticed earlier. The same view was taken under the present Code by Mookerjee and Cuming JJ. in Bepin Behary Mozumdar v. Jogendra Chandra Ghosh, AIR 1917 Cal 248. In this case the matter in controversy was whether A is entitled to recover from B Rs.5,000/- as rent for the year X. In the second suit the question in dispute is whether A is entitled to recover from B Rs.3,000/-as the rent for the year Y. Mookerjee, J. while interpreting S. 10 took the view that the expression 'matter in issue' had reference to the entire subject-matter in controversy between the parties. It was observed that 'the object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue'. It is true that in, the case before the Calcutta High Court not only the period was different but the amount claimed was also different. But the ratio of decision was the meaning given by the Division Bench to the expression 'matter in issue'. The Division Bench specifically took the view that S. 10 does not bar the trial of a suit for rent for a period subsequent to that included in the previously instituted suit for rent, although the same question may be involved in the two suits'.

16. This view of the Calcutta High Court was also followed by Abdul Rashid J. in Roshan Din v. Malan Bibi AIR 1938 Lah 502.

17. Allahabad High Court apart from the decision of Full Bench noticed earlier, under the new Code in Gargi Din Mishra v. Debi Charan : AIR1929All805 also took the same view.

18. The same view was also taken by a Division Bench of Oudh Chief Court in Channan Kuer v. Sahdeo Singh AIR 1929 Oudh 341. In (Chaudhary) Jamini Nath Mallick Y. Midnapur Zemindary Co. AIR 1923 Cal 716 the question was whether the subsequent suit for recovery of cess was liable to be stayed as an earlier suit for recovery of cess was pending. Rankin J. took the view that S. 10 had no application, Learned Judge went on to observe:

'It does not follow, because the words 'the same relief' are no longer in the section, that S. 10 is applicable to suits for recovery of successive rents. I will draw attention in this connection to one further point. Under the new Code it is clear that the section will not apply unless the previous suit is before a Court which is competent to grant the relief claimed in the present suit. That by itself shows that the section cannot apply to claims for rent due at successive periods altogether. Nobody can doubt that whatever may be the result of the suit now pending in appeal, the Court cannot possibly give judgment there under for cesses that fell due long after the institution of the suits.'

19. In Narikkote Kunnamangalath Ittisseri Kuberan Nambudri v. Pothera Kalloor Koman Nair : AIR1925Mad574 Srinivasa Aiyangar J. while construing S. 10 observed as under: -

'I believe the real intention of the Legislature in framing S. 10 of the Civil Procedure Code was merely to prevent later suits relating to the same subject-matter being tried before an earlier suit relating to the same subject-matter is tried and disposed of. Otherwise the result will be that if any issue should be common to two suits the later suit could never possibly be disposed of before the earlier suit. But we know that the law recognises that the decision even in a later suit may operate as rest judicata in a suit which has been really instituted previously. There is also direct authority for the position reported in Sreeramulu v. Sreeramulu AIR 1922 Mad 304 where Mr. Justice Venkatasubba Rao construing this very section has, after referring to the previous decisions, come to the conclusion that the expression 'matter in issue' in S. 10 has reference to the entire subject in controversy between the parties.'

20. Abdul Rehman J. though on slightly different facts also took the view in Velur Munuswami Mudaliar v. Darwaja Raghupathi . : AIR1940Mad7 as under:

The expression 'the matter in issue' as used in S. 10 does not mean any matter in issue. The matter in issue in a previously instituted suit refers to entire subject matter in dispute not to one of the issues however important it may be for the decision of the suit.

21. Mr. Sultan Singh, however, strenuously relies on the decisions of Jai Hind Iron Mart v. Tulsiram Bhagwandas : AIR1953Bom117 , C. Raman and Co. v. Modern Motor Works , Jinnat Bibi v. Howrah Jute Mill Co., Ltd. : AIR1932Cal751 , Raj Spinning Mills Amritsar v. A.G. King Ltd. Excelsior Mills , Life Pharmaceuticals (Private) Ltd. v. Bengal Medical Hall AIR l971 Cal 345, C.P. Srinivasam Pillai V. Chellakumara Gounder : AIR1973Mad253 , P. S. Kandasami Mudaliar v. T.N. Ranganathan : AIR1973Mad476 and Fulchand Motilal v. Manhar Lall Jetha Lall Mehta : AIR1973Pat196 .

22. In Jai Hind Iron Mart v. Tulsiram case the Division Bench observed as under (at P. 119):

'S. 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the Legislature in S. 10 that the identity required is a substantial identity. There must be an identity of the subject-matter, the field of controversy between the parties in the two suits must also be the, same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same.

The Calcutta suit was filed by the appellants on a contract dated 4-11-1951, and their case was that the contract was for a sale by them of 1308 tyres to the respondents. Their further contention was that these tyres were according to certain specifications and they contended that the plaintiffs in the present suit failed to take delivery of these tyres and thereforee they filed a suit for damages for non-acceptance. In the Bombay suit the respondents sued on the same contract of 4-11-1951, but their contention was that under this contract they had contracted to purchase only 1,600 tyres and not 1,898 tyres. Further the contention was that these 1,600 tyres were not according to specifications but they were according to certain contract quality, and their grievance in the Bombay suit was that the tyres that were delivered were not according to contract quality. They, thereforee, filed a suit for refund of a certain amount in respect of the price they had paid for tyres which were not according to contract quality and also for damages for non-delivery.

Held that whatever reliefs the appellants might seek in the Calcutta suit and whatever may be the reliefs which the respondents might seek in the Bombay suit, these reliefs were incidental to the decision which the Court must come to as to what was the contract between the parties. thereforee, if the Calcutta High Court in the previously instituted suit were to decide that the contract was either as the appellants pleaded or as the respondents pleaded, that decision must operate as rest judicata in the Bombay suit. The Bombay suit should be stayed under S. 10 until the hearing and final disposal of the Calcutta suit.'

23. It will be noticed that the two suits involved were in the nature of cross suits. Both the parties were relying on the same contract. The Division Bench had emphasised that 'there must be an identity of the subject-matter, the field at controversy between the parties in the two suits must also be the same. In suits for damages for different periods the field of controversy is not the same.

24. The case of C. Raman and Co. v. Modern Motor works decided by D.K. Mahajan J. is similar to the decision of the Bombay High Court mentioned earlier.

25. In the case of Jinnat Bibi v Howrah Jute Mill Co. Ltd. : AIR1932Cal751 Patterson J. noted the real matters in issue the two suits. In the case before him there was no dispute as to the rent being in arrears or about the rate of rent. The learned Judge has also noticed the controversy which was there. Patterson J. applied the test of rest judicata and took the view that S. 10 became applicable.

26. The case of C.P. Srinivasan v. Chellakumara Gounder : AIR1973Mad253 appears to support the submission made by Mr. Sultan Singh. In this case the learned Judge applied the test of rest judicata. But it appears that the earlier decisions of the Madras High Court reported as : AIR1925Mad574 and : AIR1940Mad7 were not brought to the notice of the learned Judge. The learned Judge also assumed that 'the subject-matter involved in the two suits was the same'.

27. In P.S. Kandasami Mudliar v. T.N. Ranganathan : AIR1973Mad476 Raghavan J. again applied the test of rest judicata and took the view that for applicability of S. 10 it was not necessary that the subject-matter and the causes of action in the two suits should be identical. It may have been a case to stay the suit under the provisions of Section 151 of Civil P.C. But the test laid down by the learned Judge for applying S. 10 is contrary to the earlier decisions of the Madras High Court which were not brought to the notice of the learned Judge. In any case the suits did not relate to claims for rent or damages for different periods.

28. It appears to me that the expression 'matter in issue' occurring in S. 10 of the civil P.C means the subject-matter in dispute and takes such colour from the Explanationn to S. 10.

29. The learned Additional District Judge was, thus, right in finding that S. 10 of the Civil P.C. did not apply to the facts of the case. It also appears to me that the learned Additional District Judge was also right in invoking its inherent jurisdiction to stay the subsequently instituted suit. The controversy between the parties was whether the learned Additional District Judge was right in imposing the condition. The conditions imposed for staying the suit were two fold:

1. directing the defendants 1 to 5 to deposit in court the amount of the period 1-4-1974 to 31-3-1977 at the agreed rate of rent.

2. to furnish the surety bond for the balance amount claimed in the suit to the effect that in case it was held that the defendants are trespassers and liable to pay the mesne profits @ Rs.950/- per month, they would pay the balance amount to the plaintiffs.

30. So far as the first condition is concerned this appears to be reasonable to safeguard the interests of the plaintiff. Even the second condition is not onerous. Condition is merely to furnish 'surety bond'. The order imposing conditions is discretionary in nature and not arbitrary. I, thereforee, do not find it a fit case to interface with the trial court's discretion in exercising revisional jurisdiction of this court. The revision, thus, fails and is dismissed. Parties are, however, left to bear their own costs.

31. Revision dismissed.


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