Shahvej Ur Rehman vs Smt Bilkis Jahan
2022 Latest Caselaw 6062 MP

      HIGH COURT OF MADHYA PRADESH : JABALPUR.

                                 *******
                       Misc. Petition No. 4192 OF 2021


PETITIONER         :             Shahvej-ur-Rehman
                                 S/o Mujeeb-ur-Rehman,
                                 aged about 36 years,
                                 Occupation Businessman,
                                 Resident of House No. 14,
                                 Habeeba Manjil, Opposite
                                 Sapna Apartment, Ahmedabad Palace
                                 Kohefiza, Bhopal


                                 -VERSUS-

RESPONDENT :                     Smt. Bilkis Jahan
                                 W/o Shri Munne Khan
                                 aged about 66 years
                                 Resident of House No. 67,
                                 New Kabadkhana, Bhopal (M.P.)

                                 *********
      Shri Ashish Shroti, counsel for the petitioner.
      Shri Ankit Saxena, counsel for the respondent.
                                 ********
                                  ORDER

(25/04/2022)

1. This petition has been filed by the petitioner being aggrieved by the

order dated 23.9.2021 passed by Seventh Civil Judge Class-I, Senior

Division, Bhopal in R.C.S.A. No. 888 of 2019 by which the application

filed by the petitioner under Section 10 of CPC for staying proceedings

of eviction suit has been dismissed.

2. The facts, in short, are that the petitioner/defendant was a tenant of

plaintiff/respondent's mother namely Shakuran Bee, in a shop situated in

a house. Shakuran Bee sold the entire house including the suit shop vide

registered sale deed dated 4.8.2016 for a consideration of Rs. 27 Lakh to

the father of the petitioner/defendant, however, on account of personal

difficulties, Shakuran Bee continued to reside at first floor of the building

but not as an owner thereof.

3. Shakuran Bee expired, thereafter the plaintiff/respondent continued

to occupy the said portion of the building and refused to vacate the same.

The petitioner along with his father filed a civil suit bearing RCS No.

226-A of 2017 for declaration of his title, possession, mesne profits and

permanent injunction. The plaintiff/respondent also filed a suit for

declaration of her title over the suit property and for permanent

injunction bearing RCSA No. 198-A of 2017, which is pending. The

plaintiff/respondent filed yet another suit bearing RCC No. 888-A/2019

for eviction and arrears of rent against the petitioner/defendant. In the

said eviction suit, the petitioner/defendant filed an application under

Section 10 CPC for staying proceedings of eviction suit, which has been

dismissed by the trial Court vide impugned order dated 23.9.2021, hence

this petition.

4. Learned counsel for the petitioner has submitted that the trial Court

ought to have considered that the earlier suits filed by both the parties

involve question of title and any decision in the title suits would operate

as res judicata in the present suit for eviction. The trial Court ought to

have considered that the property involved in both the earlier suits is

same as that the suit property in the eviction suit. Parties in the suits are

also common, therefore, merely because the present is a suit for eviction,

it cannot be said that the subject matter of suit is different.

5. It is further submitted that the trial Court has failed to consider that

the provision of Section 10 CPC is mandatory and the proceedings of

subsequent suits are liable to be stayed. Learned counsel for the

petitioner has placed reliance on the decision of the Supreme Court in the

case of Aspi Jal and another Vs. Khushroo Rustom Dadyburjor -

(2013) 4 SCC 333 to submit that if the matter in controversy is the same,

it is immaterial what further relief is claimed in the subsequent suit.

Counsel has further placed reliance on the decision of Indore Bench of

this Court in W.P. No. 6444 of 2015 wherein in similar circumstances,

the Court directed the trial Court to allow the application under Section

10 of CPC filed by the petitioner.

6. Learned counsel for the respondent has supported the order passed

by the trial Court and placed reliance on the decision of this Court in

W.P. No. 4220/2014 (M/s Mohan Iron Traders Vs. Smt. Rashida

Bano) decided on 22.9.2014 and in Prakash Chand Soni Vs. Anita

Jain - 2002 (2) MPHT 424 decided on 9.1.2002.

7. I have heard learned counsel for the parties and perused the record.

This Court in Prakash Chand Soni (supra) has observed as under:-

6. The rule of res-judicata in Section 11 differs from res sub judice in Section 10, CPC. The former bars the trial of a suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. Section 10 bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previously instituted suit. The words which are common in both the sections are "matter directly and substantially in issue". Therefore, for applicability of Section 10 the test is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in respect of the issues arising in the subsequently instituted suit, then it would not be proper to proceed with the trial of the very same issues in a subsequently instituted suit. The same principle would be attracted where the previously instituted suit is sought to be stayed through an application under Section 151, CPC on the ground of the pendency of the subsequent suit.

7. The interpretation of words "directly and substantially in issue" in Section 10 would be the same which has been given to such words in Section 11, CPC. These have been interpreted in various decisions of the Supreme Court including the recent case in Sajjadanashin v. Musa, AIR 2000 SC 1238, in which it has been held that the test to determine whether an issue was directly and substantially in issue in earlier proceedings or collaterally or incidentally, is that if the issue was 'necessary to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res- judicata in a latter case. Which of the matters are directly in issue and which are collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue 'material and essential' for its decision.

8. In the present case the earlier suit is for eviction and the latter suit is for specific performance of contract. In the earlier suit the matter directly and substantially in issue is whether the plaintiff is landlord of the defendant and whether one or more of the grounds for eviction under Section 12(1) of the M.P. Accomodation Control Act is established. The previous owner was admittedly the landlord of the defendant and she has executed registered sale-deed in favour of the plaintiff and on that basis she can claim to be the landlord of the suit accommodation. In that case it is unnecessary to decide the question whether there was prior agreement of sale by the previous owner in favour of the defendant. That question would be "material and essential" in the subsequent suit for specific performance of contract whether it would be decided

whether the alleged agreement of sale is true and genuine, whether the vendee was ready and willing to perform his part of the contract and whether the subsequent transferee had notice of the earlier agreement and if all the ingredients necessary in a suit for specific performance of contract are found established a decree would follow and then a sale-deed would be executed and registered either by the parties or on their failure by the Court and thereafter the vendee would acquire title to the property in dispte. It is thus clearly discernible that there Is no substantial identity of the subject matter and field of controversy between the parties in the two suits. The matter directly and substantially in issue in the eviction suit is not the same in the suit for specific performance of contract. The issue relating to the agreement of sale and its enforceability against the vendor and subsequent transferee is not "necessary" in the eviction suit. That is not "material and essential" for the decision of that suit. That suit can be decided without determining this question. Therefore, it is manifest that the matter in both the suits is not directly and substantially the same. The eviction suit cannot be stayed until the decision of the suit for specific performance of the contract. If the plaintiff in his suit for specific performance ultimately succeeds he can bet back possession of the house on the strength of his title.

8. In the case at hands, in all, there are three suits, which are pending

between the parties. The subject matter in all the three cases is different,

two suits have been filed by the respondent/plaintiff and one case has

been filed by the petitioner/defendant. The parties and their vested

interest in the suit property are also same. The respondent filed a suit for

declaration claiming that she is an owner of the suit property because her

mother executed a registered will in her favour. The petitioner had taken

signature of her mother by giving impression that the document was rent

deed. Thereafter the petitioner also filed a suit claiming his title over the

suit property alleging that the mother of the plaintiff sold the property to

him. Thereafter the respondent filed an eviction suit. The matter directly

and substantially in issue in the eviction suit filed by the respondent is

not the same as in the previous suits. Therefore, it is manifest that if the

matter in both the suits is not directly and substantially the same, the

eviction suit cannot be stayed until the decision of the previous suit.

9. In view of the aforesaid discussion and in the light of the aforesaid,

decision, I do not find any perversity or illegality in the order passed by

the trial Court, however, in order to do substantial justice between the

parties, this petition is hereby disposed of with the direction to the trial

Court to consolidate all the suits filed by the parties for hearing and

decide them analogously.

Digitally signed by
PRADYUMNA BARVE                                      (Smt. Anjuli Palo)
Date: 2022.04.26                                        Judge
12:45:11 +05'30'
  PB



     THE HIGH COURT OF MADHYA PRADESH : JABALPUR

                                  ******
                      Misc. Petition No. 4192 OF 2021

PETITIONER        :             Shahvej-ur-Rehman
                                S/o Mujeeb-ur-Rehman,
                                aged about 36 years,
                                Occupation Businessman,
                                Resident of House No. 14,
                                Habeeba Manjil, Opposite
                                Sapna Apartment, Ahmedabad Palace
                                Kohefiza, Bhopal

                                -VERSUS-

RESPONDENT :                    Smt. Bilkis Jahan
                                W/o Shri Munne Khan
                                aged about 66 years
                                Resident of House No. 67,
                                New Kabadkhana, Bhopal (M.P.)

DATED : 24.03.2022

Shri Ashish Shroti, counsel for the petitioner. Shri Ankit Saxena, counsel for the respondent.

Arguments heard.

Reserved for orders.

(Smt. Anjuli Palo) Judge