Ashwani Khatri vs Smt. Neelam Khatri
2018 Latest Caselaw 351 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
(Judgment reserved on 07.02.2018)
 
(Judgment delivered on 04.05.2018)
 
Court No. - 07
 

 
Case :- S.C.C. REVISION No. - 360 of 2017
 
Revisionist :- Ashwani Khatri
 
Opposite Party :- Smt. Neelam Khatri
 
Counsel for Revisionist :- Swapnil Kumar,Madan Mohan Chaurasisa,Vinayak Mithal
 
Counsel for Opposite Party :- Rajesh Gupta
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Swapnil Kumar, learned counsel for defendant-revisionist/ tenant and Sri Rajesh Gupta, learned counsel for the plaintiff-respondent.

2. This revision has been filed praying to set aside the order dated 25.11.2017 in S.C.C. No.8 of 2017 (Smt. Neelam Khatri vs. Ashwani Khatri) passed by Additional District Judge, Court No.4, Meerut.

3. Briefly stated facts of the present case are that one Sri Hakim Kaura Mall was the original owner of the disputed property No.208, Jamun Mohalla, Lalkurti, Meerut Cantt., District Meerut. He had four sons namely Sri Love Dev, Kush Dev, Lajpat Rai and Aamir. He executed a Will dated 12.07.1968 to give the disputed property to his son Dr. Love Dev Khatri. After his death on 07.10.1971, his son Dr. Love Dev Khatri inherited the disputed property and his name was mutated in the records of Cantonment Board, Meerut. After the death of Love Dev Khatri in the year 2008, the disputed property was inherited by his son Dr. Surender Khatri, who died on 12.11.2014 leaving behind him his wife Smt. Neelam Khatri (the plaintiff-respondent) who entered into a rent agreement dated 31.12.2014 with the defendant-revisionist (son of Kush Dev Khatri) to let out the disputed property on the ground floor at a monthly rent of Rs.5000/- and the first floor portion at a monthly rent of Rs.25,000/-.

4. Since the time of the husband of the plaintiff-respondent, a medical shop was being run in the disputed shop. The licence to run the medical shop was in the name of the late husband of the plaintiff-respondent.

5. According to the plaintiff-respondent, the rent was being regularly paid by the defendant-revisionist till 31.05.2016 after deducting service tax @ 10% amounting to Rs.3000/- per month. From 01.06.2016, the defendant-revisionist stopped payment of rent to the plaintiff-respondent and on 16.09.2016, he along with others instituted a declaratory Suit No.640 of 2016 (Smt. Lajwanti and others vs. Smt. Neelam Khatri and others) arraying the parties and praying for the relief as under:-

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6. On 06.09.2016, the defendant-revisionist had filed an O.S. No.625 of 2016 (Sri Ashwani Khatri vs. Smt. Neelam Khatri) praying for refund of the rent of Rs.5,43,000/- paid by him to the plaintiff-respondent and to declare the rent deed dated 31.12.2014 to be null and void.

7. Since the rent was not being paid by the defendant-revisionist despite demand by the plaintiff-respondent/ landlady, therefore, she issued a notice dated 17.03.2017 to the defendant revisionist terminating the tenancy and demanding of arrears of rent. This notice was served upon the defendant-revisionist on 20.03.2017. Thereafter he sent a reply dated 12.04.2017 to the plaintiff-respondent/ landlady. Since even after determination of tenancy, neither the disputed property was vacated by the defendant-revisionist nor the arrears of rent was paid, therefore, on 24.04.2017, the plaintiff respondent filed S.C.C. Suit No.8 of 2017 (Smt. Neelam Khatri vs. Ashwani Khatri) praying for eviction of the defendant-revisionist, from the disputed property and arrears of rent and damages etc.

8. In the aforesaid SCC suit, the defendant-revisionist/ tenant filed a written statement dated 07.07.2017 wherein he took the stand that the plaintiff-respondent is not the landlady/ owner of the disputed property after the death of her husband. Thereafter, the defendant-revisionist/ tenant filed an Application 37ga under Section 10, C.P.C. praying to stay the proceeding in the aforesaid S.C.C. Suit on the ground that he has filed a Suit No.625 of 2016 (Ashwani Khatri vs. Smt. Neelam Khatri) to declare the rent deed dated 31.12.2014 to be null and void and for recovery of the rent paid amounting to Rs.5,43,000/- and also filed another Suit No.640 of 2016 along with others to declare the Will of late Hakim Kaura Mall dated 12.07.1968 to be null and void. This application being paper No.37ga was rejected by the impugned order dated 25.11.2017 passed by the Additional District Judge, Court No.12, Meerut. Aggrieved with this order, the defendant-revisionist has filed the present revision under Section 25 of the Provincial Small Cause Court Act, 1887.

Submission on behalf of the Defendant-Revisionist:-

9. Sri Swapnil Kumar, learned counsel for the defendant-revisionist submits as under:

(i) The finding recorded by the court below in the impugned order that the courts where the earlier two suits have been instituted, have no jurisdiction to grant the relief of the present SCC suit, is wholly erroneous and illegal and untenable in view of the law laid down by a Full Bench of this court in Manzurul Haq vs. Haqim Mohsin Ali, AIR 1970 ALL. 604 (FB) (Paras-15, 28, 36, 40 and 52), wherein it has been held that Court of Small Cause is not a court of exclusive jurisdiction but a preferential jurisdiction inasmuch as Section 15 of the Provincial Small Cause Courts Act, 1887, is enabling provision which does not say that no court shall have jurisdiction to take cognizance all such suits. He also relied upon a judgment of Hon'ble learned Single Judge in Prem Chand vs. Dr. Aditya Kumar, 2013 (9) ADJ 81 (Para-4) which follows the aforesaid Full Bench judgment and holds that jurisdiction of J.S.C.C. is a preferential jurisdiction and not exclusive and decree for eviction passed against the tenant by the regular civil court is not nullity. In Sardar Gurtahal Singh vs. Anand Singh Jagdhari and 8 others, 2015 (1) ARC 133 (Para-9), it has been held that it cannot be said that a suit which is triable by the Small Cause Court can under no circumstances be decided by the regular civil court and the decision of a regular civil court in such a suit is not a nullity.

(ii) The object of Section 10 C.P.C. is to avoid multiplicity of proceedings and possible contradictions in the judgments in different suits. Therefore, the court below committed a grave error of law to reject the Application 37ga despite the settled position of law that J.S.C.C. Court is not a court of exclusive jurisdiction but a preferential jurisdiction.

(iii) If a finding is arrived at in the earlier suits in favour of the defendant-revisionist, it may operate as res judicata against the plaintiff respondent in the S.C.C. Suit. Therefore, stay of the suit proceeding under Section 10 C.P.C. was necessary but the court below has committed a manifest error of law to reject it. Reliance is placed on the judgment of Suresh Kumar Bansal vs. Vijay Kumar Jain, 2005 (2) AWC 1746 (Paras-5, 6, 8 and 9), Dr. Alok Kumar vs. Sarabjeet Singh and others, 2006 (4) AWC 3827 (Paras-3 and 5) and the judgment of Hon'ble Supreme court in the case of National Institute of Mental Health and Neuro Sciences, (2005) 2 SCC 256 (Para-8) and ASPI JAL and another vs. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 (Paras-9 and 11).

Submission on behalf of plaintiff-respondent:-

10. Section 10 C.P.C. provides that 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. The earlier instituted two suits by the defendant-revisionist does not involve directly or substantially the issues which are involved in the S.C.C. Suit. The nature of all the three suits and issues involved therein are totally different, and, therefore, Section 10, C.P.C. has no application. The decision of the J.S.C.C. Suit shall not effect the decision in the earlier suit by the defendant-revisionist. The present suit is a suit for eviction of a tenant and recovery of arrears of rent in terms of a duly executed rent deed. The suits instituted by the defendant-revisionist are on entirely different issues and for entirely different reliefs. Therefore, any decision in the S.C.C. Suit shall not operate as res judicata in the earlier instituted two suits. To support his submission, he relied upon a decision of this court in Rakesh Kumar Gupta vs. Ashok Kumar Gupta, 2006 (1) ARC 644 (Paras-9 and 11).

11. In rejoinder, Sri Swapnil Kumar submits that the judgment in the case of Hasmat Ullah Khan (supra) relied by the court below runs in counter to the law laid down by the Full Bench in the case of Manzurul Haq (supra).

Discussion and Findings:

12. I have carefully considered the submissions of the learned counsels for the parties.

13. The only question that arises for consideration in the present revision is, as under:

"Whether the court below has lawfully rejected the defendant-revisionist/ tenant's Application 37ga by the impugned order dated 25.11.2017 in SCC No.8 of 2017 when O.S. No.640 of 2016 for declaration of the Will of Hakim Kaura Mall dated 19.07.1968 as null and void and O.S. No.625 of 2016 to declare rent deed dated 31.12.2014 to be null and void, were pending?

14. It is undisputed that father-in-law of the plaintiff-respondent/ landlady inherited the disputed property by a Will of his father dated 12.07.1968. After the death of her father-in-law in the year 2008, the disputed property was inherited by her husband Dr. Surendra Khatri who was having licence to run a medical shop under the name and style of Asha Medical Store. He died on 12.11.2014 leaving behind him his wife (the plaintiff-respondent) who inherited the disputed property. The medical store was being allegedly run since the year 1971 and its licence was in the name of the husband of the plaintiff-respondent/ landlady. There is no dispute that the defendant-revisionist/ tenant entered into a rent agreement dated 31.12.2014 with the recorded owner, namely the plaintiff-respondent/ landlady and took the disputed property at a monthly rent of Rs.30,000/- as aforementioned to run a medical store. The plaintiff-respondent and the defendant-revisionist both belong to the family of their ancestor Hakim Kaura Mall who originally owned the disputed property. Inheritance of the disputed property by father-in-law of the plaintiff-respondent on 07.10.1971 and thereafter by her husband in the year 2008, was not disputed by any one including the defendant-revisionist till he filed after 45 years O.S. No.625 of 2016 and O.S. No.640 of 2016. The rent agreement dated 31.12.2014 under which the defendant-revisionist occupied the disputed property as tenant at a monthly rent of Rs.30,000/-, was acted upon and the defendant-revisionist continued to pay rent to the plaintiff-respondent/ landlady at the agreed rate under the agreement till 31.05.2016. Thus, prima facie, there was relationship of landlady and tenant between the plaintiff-respondent and the defendant-revisionist. On account of non-payment of rent since 01.06.2017, the plaintiff-respondent filed the SCC No.8 of 2017 for eviction of the defendant-revisionist and recovery of arrears of rent which appears to be a suit well within the jurisdiction of the Judge Small Cause Court under the Provincial Small Cause Courts Act, 1887.

15. The O.S. No.640 of 2016 was filed by the defendant-revisionist along with Smt. Lajwanti, Smt. Anju Danda and Smt. Annu Gandhi against the plaintiff-respondent and 10 others, for declaration of one third share in the disputed property and also to declare the Will of Hakim Kaura Mall dated 12.07.1968 to be null and void. Thus, in the aforesaid O.S. No.640 of 2016, the matter as involved in the aforesaid SCC Suit, is not in issue directly and substantially and between the same parties. O.S. No.625 of 2016 filed by the defendant-revisionist is a suit for a decree for the amount of rent received by the plaintiff-respondent under the rent agreement dated 31.12.2014 and to declare the said rent agreement to be null and void. Thus, this suit also cannot be made a ground to invoke Section-10, C.P.C., which reads as under:

"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."

16. In National Institute of Mental Health and Neuro Sciences vs. C.Parameshwara [(2005) 2 SCC 256], Hon'ble Supreme Court considered the scope of Section 10 C.P.C. and held as under:

"8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical."

17. In Pukhraj D. Jain & Ors vs G. Gopalakrishna, [(2004) 7 SCC 251] (Para-4), Hon'ble Supreme Court explained the provisions of Section 10 C.P.C. and held as under:

"4. ....................... The proceedings in the trial of a suit have to be conducted in accordance with provisions of the Code of Civil Procedure. Section 10 CPC no doubt lays down that 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. However, mere filing of an application under section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter. 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. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the court as to how the proceedings should be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of parties. However, where subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side."

18. In Radha Devi Vs. Deep Narayan Mandal, [(2003) 11 SCC 759] (Para-4), Hon'ble Supreme Court considered the matter arising from an order allowing application under Section 10, C.P.C. on the ground that staying the proceedings of eviction suit on the ground of pendency of a title suit and held as under:

"4. ...................... After we have heard the learned counsel for the parties, we are of the view that the Bihar Rent Act is a special Act providing for speedy disposal of eviction suit on certain grounds enumerated therein. Under the said Act eviction suit is required to be tried under summary procedure provided under the Act. To succeed in the eviction suit under the Bihar Rent Act the landlord is required to prove contract of tenancy between her and the tenant and also the ground on which the eviction is sought. In such a suit the Rent Court is not required to go into the serious question of title otherwise the purpose of the Act would stand frustrated. In the aforesaid view of the matter, we are of the view that the courts below were not justified in staying the proceedings in the eviction suit."

19. In Aspi Jal and another vs. Khushroo Rustom Dadyburjor, [(2013) 4 SCC 333] (Para-9), Hon'ble Supreme Court considered the applicability of Section 10 of the Code in a eviction suit and held as under:

"The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding."

(emphasis supplied by me)

20. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts of concurrent jurisdiction so as to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. It prevents the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, same subject matter and the same relief. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of another nature instituted under any other statute. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 can be invoked only when the matter in issue is directly and substantially in issue in the previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if the matter in issue in both the suits is identical and it is between the same parties, or between the parties to whom they or any of them claim litigating under the same title. Such is not the situation involved in the present case as already discussed above. Therefore, the Application 37ga filed by the defendant-revisionist in the aforesaid SCC suit was lawfully rejected by the impugned order.

21. In the case of Ramji Gupta vs. Gopi Krishan Agrawal [(2013) 9 SCC 438] (Paras-16 to 18), Hon'ble Supreme Court held that the Small Causes Court has no right to adjudicate upon the title of the property. A question of title could also be decided upon incidentally, and that any finding recorded by a Judge, Small Causes Court in this behalf, could not operate as res judicata in a suit based on title. The procedure adopted in the trial of a case before the Small Causes Court is summary in nature.

22. In view of the above discussion, the provisions of Section 10 of the Code and the law laid down by Hon'ble Supreme Court as afore-noted, I have no difficulty to hold that the previously instituted two suits by the defendant-revisionist being O.S. No.625 of 2016 and O.S. No.640 of 2016 and the SCC case filed by the plaintiff-respondent/ landlady being SCC No.8 of 2017, are not in respect of the same cause of action, same subject matter and the same relief. Therefore, the court below has not committed any error of law to reject the Application 37ga by the impugned order dated 25.11.2017. The revision has no merit and, therefore, deserves to be dismissed.

23. In result, Revision fails and is hereby dismissed.

Order Date :- 04.05.2018

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