Mall vs Shri Joginder Lal Kuthiala And ...
2021 Latest Caselaw 4666 HP

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                 ON THE 23rd DAY OF SEPTEMBER, 2021




                                                            .
                           BEFORE





           HON'BLE MR. JUSTICE AJAY MOHAN GOEL





                 CIVIL REVISION No. 213 of 2016 &
                 CIVIL REVISION No. 214 of 2016

CIVIL REVISION No. 213 of 2016





     Between:-
     SHRI SURINDER PAL BAMBA,
     SON OF LATE SHRI DARYAI

     LAL BAMBA, PARTNER M/S
     ALFA RESTAURANT, 14, THE

     MALL, SHIMLA, H.P.
                                                   ...PETITIONER
     (BY SHRI G. C. GUPTA, SENIOR
     ADVOCATE, WITH MS. MEERA DEVI,


     ADVOCATE)

     AND




1.   SHRI     JOGINDER      LAL
     KUTHIALA, SON OF LATE SHRI





     BISHAN LAL KUTHIALA.

2.   SHRI JATINDER LAL KUTHIALA,





     SON OF LATE SHRI BISHAN
     LAL KUTHIALA.

3.   MS. SUSHMA KUTHIALA, WIFE
     OF   SHRI JOGINDER    LAL
     KUTHIALA.

     ALL RESIDENTS OF 11, CANAL
     ROAD, JAMMU (J&K).
                                              ...RESPONDENTS




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4.   M/S ALFA RESTAURANT, 14,
     THE MALL, SHIMLA, THROUGH
     ITS PARTNER SHRI SUNIL
     BAMBA.




                                                      .
                            ...PROFORMA RESPONDENT





     (SHRI SUNEET GOEL, ADVOCATE, FOR R-1
     TO R-3
     R-4 EX PARTE)





CIVIL REVISION No. 214 of 2016

Between:-
     SHRI SURINDER PAL BAMBA,




     SON OF LATE SHRI DARYAI
     LAL BAMBA, PARTNER M/S
     ALFA RESTAURANT, 14, THE
     MALL, SHIMLA, H.P.
                     r                       ...PETITIONER
     (BY SHRI G. C. GUPTA, SENIOR

     ADVOCATE, WITH MS. MEERA DEVI,
     ADVOCATE)

     AND



1.   SHRI     JOGINDER      LAL
     KUTHIALA, SON OF LATE SHRI
     BISHAN LAL KUTHIALA.




2.   SHRI JATINDER LAL KUTHIALA,





     SON OF LATE SHRI BISHAN
     LAL KUTHIALA.





3.   MS. SUSHMA KUTHIALA, WIFE
     OF   SHRI JOGINDER    LAL
     KUTHIALA.

     ALL RESIDENTS OF 11, CANAL
     ROAD, JAMMU (J&K).
                                        ...RESPONDENTS

4.   M/S ALFA RESTAURANT, 14,
     THE MALL, SHIMLA, THROUGH
     ITS PARTNER SHRI SUNIL
     BAMBA.




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                            ...PROFORMA RESPONDENT
     (SHRI SUNEET GOEL, ADVOCATE, FOR R-1
     TO R-3
     R-4 EX PARTE)




                                                                  .

     Whether approved for reporting? Yes.
__________________________________________________________
         These petitions coming on for hearing this day, the Court





passed the following:
                                 JUDGMENT

As similar issues are involved in both these petitions,

2. to therefore, they are being disposed of by a common judgment.

Civil Revision No. 213/2016, titled as Shri Surinder Pal

Bamba Vs. Shri Joginder Lal Kuthiala and others has been filed by the

petitioner feeling aggrieved by order, dated 17 th November, 2016, passed

by the Court of learned Rent Controller, Shimla, H.P. in CMA No. 104-6 of

2015, filed in Rent Case No. 191-2 of 2013/12, titled as Shri Joginder Lal

Kuthiala and others Vs. Shri Surinder Pal Bamba and another, vide which,

an application filed under Section 10 read with Section 151 of the Code of

Civil Procedure, 1908 by the present petitioner for stay of the proceedings

in the Rent Petition, inter alia, on the ground of pendency of earlier Rent

Petition No. 14-2 of 2009/2000, has been dismissed.

3. Civil Revision No. 214 of 2016, titled as Shri Surinder Pal

Bamba Vs. Shri Joginder Lal Kuthiala and others has been filed by the

petitioner against an order, dated 17th November, 2016, passed by the

Court of learned Rent Controller, Shimla, H.P. in CMA No. 109-6 of 2015,

filed in Rent Case No. 189-2 of 2013/12, titled as Shri Joginder Lal

Kuthiala and others Vs. Shri Surinder Pal Bamba and another, vide which

.

also, an application filed under Section 10 read with Section 151 of the

Code of Civil Procedure for stay of proceedings in the Rent Petition, on

the ground of pendency of an earlier Rent Petition, i.e., Rent Petition No.

14-2 of 2009/2000, has been dismissed.

4. Record of these cases is with the Court. Perusal thereof

demonstrates that in both these cases, at the time of framing of issues,

learned Rent Controller has framed an issue: "whether the petition is

liable to be stayed under Section 10 of the Code of Civil Procedure, as

alleged?" The onus to prove the said issue is upon the respondents. This

Court is of the considered view that as learned Rent Controller framed the

above issue for the purpose of adjudication of the Rent Petition, then, in

such circumstances, even if subsequently an independent application

stood filed under 10 of the Code of Civil Procedure by the respondents

therein praying for stay of the proceedings of the Rent Petition, the same

ought not to have been adjudicated by the learned Rent Controller on

merits, as by doing so, the issue framed by the learned Rent Controller,

referred to above, has been rendered redundant.

5. Accordingly, without dwelling upon the merits of the orders,

which stand impugned by way these petitions, the petitions are disposed

of by setting aside the impugned orders, dated 17th November, 2016,

passed by the Court of learned Rent Controller, Shimla, H.P. in CMA No.

104-6 of 2015, filed in Rent Case No. 191-2 of 2013/12, titled as Shri

.

Joginder Lal Kuthiala and others Vs. Shri Surinder Pal Bamba and

another and in CMA No. 109-6 of 2015, filed in Rent Case No. 189-2 of

2013/12, titled as Shri Joginder Lal Kuthiala and others Vs. Shri Surinder

Pal Bamba and another, with further direction to learned Rent Controller to

consolidate these two Rent Petitions alongwith Rent Petition No. 14-2 of

2009/2000.

6. In the Rent Petitions, in which, evidence has not yet been led,

maximum three opportunities each shall be granted to the parties to lead

evidence on the issues framed. As Rent Petitions are quite old, learned

Rent Controller is directed to make an endeavour to decide the same by

31st March, 2022. Post consolidation, the matters shall be tried by the

learned Rent Controller. Parties to appear before the learned Court below

on 4th October, 2021. With the aforesaid observations, these petitions are

closed. Miscellaneous applications, if any, also stand disposed of.

7. Before parting with the judgment, this Court wants to make an

observation. Section 10 of the Code of Civil Procedure,1908 provides 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."

8. The intent of said Section is that if two parties are already

before a Court, in which, substantially the same issue is involved, which

again stands raised by either party, then the subsequent proceedings

should be stayed till the adjudication of earlier proceedings.

9. This Court is of the considered view that for the purpose of

adjudication of a lis, while framing issues, there is no need to frame an

issue as to whether the proceedings in the suit should be stayed in view of

the provisions of Section 10 of the Code of Civil Procedure, as has been

done in these cases. The purpose of framing the issues is that the parties

know as to what are the main points involved in the case, on which, they

have to lead evidence to put forth their respective contentions. The

principle of res subjudice has got nothing to do with the framing of issues.

Whether or not a subsequent lis is hit by the principle of res subjudice, is

an interlocutory matter, which the Court, if called upon to answer, has to

.

answer, in terms of the application moved before it. In case the Court

comes to the conclusion that the case is hit by the principle of res

subjudice, then it will stay the further proceedings in the matter and if not,

it will venture to adjudicate the case, on merit. However, by no stretch of

imagination, an issue in this regard can be framed alongwith other issues

on the merits of the case, as has been done in the present case. Learned

Registrar General is called upon to bring this order to the notice of all the

learned District and Sessions Judges, so that the Judicial Officers can be

sensitized in this regard.

(Ajay Mohan Goel)

Judge September 23, 2021 (bhupender)