Smt. Shamim Fatima vs Azizurrehman Farukhi
2022 Latest Caselaw 5953 MP

                     1                    MISC. PETITION No. 1662 of 2021




IN THE HIGH COURT OF MADHYA PRADESH
                          AT INDORE
                             BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA

                  ON THE 22nd OF APRIL, 2022


               MISC. PETITION No. 1662 of 2021

 Between:-
 SMT. SHAMIM FATIMA W/O LATE MOHAMMAD LAKAULLAH ,
 AGED ABOUT 69 YEARS, OCCUPATION: HOUSEWIFE 2550-51,
 GOKULGANJ, DR. AMBEDKAR NAGAR, MHOW, DIST. INDORE
 (MADHYA PRADESH)
                                               .....PETITIONER
 (BY SHRI NILESH AGRAWAL, ADVOCATE )

 AND

 AZIZURREHMAN FARUKHI S/O SHRI OBEDURREHMAN , AGED
 ABOUT   44  YEARS,  OCCUPATION:   BUSINESS   2522/1,
 GOKULGANJ, DR. AMBEDKAR NAGAR, MHOW, DIST. INDORE
 (MADHYA PRADESH)
                                           .....RESPONDENTS
 (BY SHRI VIBHOR KHANDELWAL, ADVOCATE)
     This petition coming on this day, the court passed the

following:

                             ORDER

Both the parties heard finally.

By the instant petition, the petitioner has called in question the legality and validity of the impugned order dated 2.3.2021 passed by 3rd Civil Judge Class I Ambedkar Nagar Mhow, Indore in civil suit No. 92A/2018 whereby an application under Section 10 of C.P.C. filed by petitioner/defendant has been dismissed.

Facts in brief are that earlier respondent had filed a civil suit before the Court of 4th Additional District Judge Mhow which was registered as civil suit No. 17A/2013 for eviction of petitioner and his family as tenant in respect of suit house No. 2551 Gokulganj Mhow from disputed house claiming himself to be owner of the disputed house on the basis of sale deed dated 1.6.2009. During pendency of the suit, respondent got his suit withdrawn with liberty to file fresh suit for title. In the meanwhile petitioner filed a civil suit for declaration, protection of possession and injunction etc. against the respondent and Dr. Mohd. Ebadullah which was registered as civil suit No. 39A/2013. After hearing both the parties and on concluding the trial, the trial court has dismissed the suit filed by the petitioner. The same was challenged by the petitioner by filing FA No. 1246/2017 before this Court. After dismissal of the suit filed by the petitioner, respondent again filed eviction suit against the petitioner which is registered as civil suit No. 92A/2018. During pendency of the said suit, petitioner/defendant had filed an application under Section 10 of CPC which was dismissed by the

trial court by the impugned order. Hence this petition is filed before this Court.

Learned counsel for the petitioner contended that appeal is continuity of the suit therefore, proceedings of the eviction suit is to be stayed until and unless first appeal in respect of title suit is decided between the parties. The impugned order passed by the court below is contrary to law and fact on record and also perverse. The trial court has erred in not appreciating the fact that the respondent herself withdrew the earlier civil suit in the light of the title suit pending between the parties. In support of his submission learned counsel placed reliance upon judgment of the coordinate bench of this Court in the matter of Dadolwa Vs. Ramakat reported in 2013(4) MPLJ 614. Under these circumstances he prays that the impugned order passed by the trial court be set aside.

Per contra learned counsel for respondent opposed the petition by supporting the impugned order passed by the trial court.

Both the parties heard at length and perused the documents filed by both the parties.

The fundamental test to attract section 10 of CPC is that whether a final decision being reached in the previous suit such decision would operate as res judicata in the subsequent suit.

Section 10 of CPC applies only in cases where whole of the

subject matter in both the suits are identical. The object underlying section 10 CPC is to prevent the court of concurring jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. But a perusal of the previously and subsequently filed civil suit, the grounds and relief sought therein, shows that present suit was filed by plaintiff Azizurrehman on the basis of registered sale deed and he sought relief for eviction, vacant possession of the suit house, arrears of rent and mesne profit but earlier civil suit No. 39A/2013 was filed by Shamim Fatima against Azizurrehman but that suit was filed on the basis of Hibba deed dated 10.8.2003. She is also claiming herself as owner of the suit house. Dr. Mohd. Ebadullah @ Abdullah Farukhi was not party in the previously instituted civil suit. The relief sought in both the matters are different.

After perusal of the record, it appears that the matter in issue in both the suits are not directly or substantially the same, the parties are not same, relief claimed by plaintiff in the present suit is also different, the cause of action of both the cases is also not similar. Therefore, it cannot be said that in case the present suit is allowed to continue, chances of contradictory findings in both the suits cannot be ruled out. The citation placed by the learned counsel for the petitioner in case of Dadolwa (supra) is distinguishable on its own fact.

Under the facts and circumstances, the trial court has not committed any illegality or perversity in dismissing the application of petitioner which may warrant an interference from this Court.

Accordingly this Misc. Petition sans merit and is hereby dismissed.

C.C. as per rules.

(ANIL VERMA) JUDGE BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.04.22 17:57:37 +05'30'