Naresh Handa vs Sunil Kochhar
2018 Latest Caselaw 3501 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 1st June, 2018
+               CM(M) 734/2017 & CM No.25163/2017 (for stay)
        NARESH HANDA                            ..... Petitioner
                   Through:  Mr. L. K. Singh and Ms. Saira
                             Parveen, Advs.
                       Versus
    SUNIL KOCHHAR                           ..... Respondent

Through: None.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1 This petition under Article 227 of the Constitution of India

impugns the order [dated 2nd May, 2017 in CS No.602/2015 of the

Court of Additional District Judge-02 (Central), Tis Hazari Courts,

Delhi] deciding the following issue:-

"Whether the suit is liable to be stayed under Section 10 CPC in view of Civil Suit No.92/15 titled "Sunir Kochhar Vs. Ravinder Handa & Ors." and CS No.82/15 title Ravinder Handa Vs. Union of India & Ors." filed earlier to present suit?" (OPD).

ordered to be treated as a preliminary issue, in a suit filed by

respondent against petitioner, and holding that though there was no

ground to stay the trial but the final decision in the suit will await the

outcome of the previously instituted suits.

2. The petition came up before this Court first on 19th July, 2017,

when attention of the counsel for the petitioner/defendant was drawn

to the definition of „decree‟ in Section 2(2) of the Code of Civil

Procedure, 1908 (CPC) and which inter alia provides that even

adjudication of some of the matters in controversy is a decree and it

was enquired from the counsel for the petitioner/defendant, whether

not the remedy of the petitioner/defendant against an order on a

preliminary issue would be of an appeal and not a petition under

Article 227.

3. On request of the counsel for the petitioner/defendant, the

hearing was adjourned to 20th July, 2017. On 20th July, 2017, the

counsel for the petitioner/defendant stated that he will file written

submissions and the file was sent to the Chamber awaiting the same

and for orders to be passed in the Chamber. The counsel for the

petitioner/defendant, on 24th July, 2017, handed over written

submissions. However, the file went on a back burner and the passing

of the order remained and since considerable time has lapsed, the

Court Master has telephonically informed the counsel for the

petitioner/defendant of the passing of this order in today‟s date.

4. The counsel for the petitioner/defendant, in his written

submissions, (i) relying on Narayana Kurup Vs. Rama Panicker AIR

1953 Tra-Co 367 has contended that the decision on the question,

whether trial in the suit should be stayed or not, does not amount to a

decision on a matter in controversy in the suit; (ii) relying on

Chhelaram Vs. Manak AIR 1997 Raj 284 and Dattatraya

Purshottam Parnekar Vs. Radhabai Balkrishna Trimbak AIR 1921

Bom 220 has contended that the words "determination of the rights of

the parties" in Section 2(2) of the CPC refers to substantive rights of

the parties with regard to merits of the case and not to other disputes

between the parties which are ancillary to the subject matter of the

suit; (iii) has contended that Section 10 of the CPC does not preclude

or prevent a party from filing a suit and what is curtailed is the

proceedings in the suit, if the rights in controversy are also subject

matter of a previously instituted suit.

5. I have since, in Lalit Yadav Vs. Delhi Development Authority

MANU/DE/7871/2017, relying primarily on Rishabh Chand Jain Vs.

Ginesh Chandra Jain (2016) 6 SCC 675, held a decision on a

preliminary issue dismissing the suit to be a decree and have today in

CM(M) No.743/2017 titled Pratap Singh Vs. Ramjas Foundation

held a decision on a preliminary issue, even if holding the suit to be

maintainable, is appealable and hence the remedy under Article 227 of

the Constitution of India is not available thereagainst.

6. What remains to be considered is, whether a decision on a

preliminary issue qua Section 10 of the CPC is any different.

7. To appreciate the same, a summary of the facts may be given.

8. The respondent/plaintiff instituted the suit from which this

petition arises, for recovery of possession of immoveable property

with mesne profits, on the basis of title to the property and pleading

that though the respondent/plaintiff was not aware of the capacity in

which the petitioner/defendant was in occupation of the property but

the petitioner/defendant in a previous suit filed by the

respondent/plaintiff against the petitioner/defendant qua unauthorised

construction being carried out by the petitioner/defendant had claimed

himself to be a tenant in the premises under another person.

9. The petitioner/defendant contested the suit inter alia pleading

(a) that the suit was liable to be stayed under Section 10 of the CPC

because of the pendency of an earlier suit filed by the

respondent/plaintiff, of declaration that the Will dated 5 th March, 2014

of late Ms. Padma as null and void; (b) that under the said Will of Ms.

Padma, the suit property had been bequeathed to one Ravinder Handa

and the petitioner/defendant, who was a tenant under Ms. Padma, had

since attorned to Ravinder Handa as landlord and the said Ravinder

Handa had also instituted a suit for recovery of possession against the

petitioner/defendant and in which suit the respondent/plaintiff had also

been impleaded as a defendant.

10. The learned Additional District Judge, in the impugned order

has reasoned and held (i) that in the suit for declaration filed by

respondent/plaintiff qua the Will of Ms. Padma, only Ravinder Handa

is the defendant and the petitioner/defendant is not a party to the suit

property; (ii) that in another suit filed by Ravinder Handa, of

declaration of the documents in favour of the respondent/plaintiff as

not binding on him, the petitioner/defendant was not a party; (iii) that

the issue as to whether the suit property is owned by the

respondent/plaintiff or Ravinder Handa as successor of Ms. Padma,

was already subject matter of the said two suits and the decision in the

said suits would have a direct and material bearing on the outcome of

the subject suit; (iv) that the said two suits have already been clubbed

for the purposes of trial; (v) that it was in the fitness of the things that

the subject suit should proceed for trial but the final decision be kept

on hold till the time of decision in the suits between the

respondent/plaintiff and Ravinder Handa.

11. The petitioner/defendant is aggrieved from refusal to stay

proceedings in the suit.

12. Merit is found in the contention of the counsel for the

petitioner/defendant, that the order aforesaid does not constitute a

decree, inasmuch as it does not conclusively determine the rights of

the parties with regard to all or any of the matters in controversy in the

suit. I also find a Division Bench of the High Court of Punjab and

Haryana to have in P.C. Jairath Vs. Amrit Jairath AIR 1967 P&H

148 held that no appeal lies from an order passed under Section 10 of

the CPC and it has been held by a Division Bench of Himachal

Pradesh High Court in Ram Dass Vs. Subhash Bakshi AIR 1977 HP

18 that an order under Section 10 of the CPC is revisable under

Section 115 of the CPC. In fact, this Court in Anant Verinder Singh

Vs. State (Govt. of NCT of Delhi) (2003) 107 DLT 291 has held that a

petition under Article 227 of the Constitution of India against an order

staying proceedings under Section 10 CPC is not maintainable

because remedy of a Revision Petition under Section 115 CPC is

available.

13. However, Anant Verinder Singh supra though, pronounced on

18th September, 2003, did not consider amendment with effect from 1 st

July, 2002 to the CPC, adding a proviso to Section 115(1), providing

that the High Court shall not thereunder vary or reverse any order

made in the course of suit except where the order, if had been made in

favour of party applying for revision, would have finally disposed of

the suit. The order, even if in favour of petitioner / defendant, would

have merely stayed proceedings in the suit and not disposed of the

suit. Reference if any required, can be made to Shiv Shakti Coop.

Housing Society, Nagpur Vs. Swaraj Developers (2003) 6 SCC 659.

This Court, in Pratap Narain Mathur Vs. MCD 2014 SCC OnLine

Del 403 has held a Revision Petition under Section 115 CPC to be not

maintainable against an order on an application under Section 10 CPC.

14. Resultantly, the petitioner / defendant is entitled to invoke

Article 227 of the Constitution of India.

15. However, otherwise on merits, I am unable to find any error in

the order of the learned Additional District Judge. The question

involved in the suit from which this petition arises is of the entitlement

of the petitioner/defendant to continue in occupation of the premises.

It is not in dispute that the petitioner/defendant is a tenant in the

premises and whether it is the respondent/plaintiff, who is the

owner/landlord or it is the aforesaid Ravinder Handa, who is the

owner/landlord. The petitioner/defendant, if not entitled to continue in

the premises and if liable for any mesne profits, a decree therefor is

required to be passed, leaving it open to the respondent/plaintiff and

the aforesaid Ravinder Handa to in their inter se proceedings, have

adjudicated, which one of them is entitled to possession and mesne

profits. It is found, that the petitioner/defendant taking advantage of

the inter se fight between the respondent/plaintiff and the aforesaid

Ravinder Handa, is benefiting by continuing in possession of the

premises and to which the Court cannot be a privy.

16. In fact it is inexplicable, as to why the respondent/plaintiff

and/or the aforesaid Ravinder Handa have in their inter se suits not

obtained an order for appointment of a Receiver to take steps for

ejectment of the petitioner/defendant of optimum utilization of

property subject to the outcome of their inter se suits.

17. Supreme Court, in Aspi Jal Vs.Khushroo Rustom Dadyburjor

(2013) 4 SCC 333 held that for Section 10 CPC to apply, the entire

subject matter of two suits must be same. Here, the subject matter of

ejectment of petitioner / defendant is not subject matter of inter se title

disputes between respondent / plaintiff and Ravinder Handa.

18. The petition is thus dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

JUNE 01, 2018 „bs‟