Judgment:
Manmohan Sarin, J.
(1) By this order, I would be disposing of three interim applications, viz. IA. 7329/94, IA. 11209/95 and IA. 660/97.
(2) IA. 7329/94 is moved by the defendant praying that the preliminary objection raised in the written statement, under Section 10 of the Code of Civil Procedure, be treated as a preliminary issue. The submission being that the suit was liable to be stayed in view of the previously instituted suit for possession in the District Court, bearing Suit No. 733 of 1989 between the same parties. The suit was decreed on 4th November, 1996. An appeal preferred before the Division Bench has been admitted to hearing.
(3) IA. 11209/95 is moved by the plaintiff praying, inter alia, that the evidence led by it in Suit No. 733 of 1989, for possession, be treated and read as evidence on Issue Nos.3 & 4 in the present Suit No. 413/90 for recovery of mesne profits and compensation for use. A prayer is also made for the defendant to furnish security/guarantee for the amount claimed as mesne profit/damages.
(4) Following the Suit No. 733 of 1989 being decreed, plaintiff has moved IA. 660/97 under Order Xiii Rule 2 read with Section 151 of the Code of Civil Procedure. The application inter alias seeks certified copies of documents exhibited in Suit No. 733 of 1989 to be received as evidence in the present suit. It is further claimed that I.A. 7329/94 moved by defendant for stay of suit, be dismissed as infructuous. Similar prayer as made in I.A. 11209/95 for the evidence led by the plaintiff on Issue Nos.3 & 10 in Suit No. 733 of 1989 in the District Court which are the same as Issue Nos.3 & 4 in the present suit, be read as evidence in the present suit. The evidence to be led only in the present suit, would then be confined to the issue of quantum and rate of damages for use and occupation, i.e. Issue No.2.
(5) Before taking up the averments made in the individual applications, it would be appropriate to set out the factual matrix of this litigation between the parties :
(I)Plaintiff/landlord, Dr. D.B. Jain vide a lease deed dated 1.8.1964 had let out to the defendant/tenant the ground floor, first floor and portion of the second floor of the property bearing municipal number 114238, Ansari Road, Darya Ganj, Delhi, on a monthly rental of Rs. 4,250.00 for a period of five years.
(II)Plaintiff had filed an eviction petition before the Additional Rent Controller for eviction of the respondent. Plaintiff had also filed a suit for possession against the defendant in respect of certain portions of the property, which were not part of the lease deed but are claim to have been unauthorisedly occupied. Mandatory injunction for demolition of the unauthorised constructions made was also sought. The said suit had been decreed by Shri S.M. Gupta, Sub-Judge, 1st Class. However, the relief with regard to possession of the terrace and roof floor were rejected. Both the parties have filed appeals against the decision of the Sub-Judge.
(III)Thereafter, with the coming into force of the amended Delhi Rent Control Act with effect from 1.12.1988, the plaintiff vide a notice dated 8.3.1989, sought to terminate the tenancy of the defendant with effect from 30.4.1989. Damages for use and occupation, at the rate of Rs. 22.00 per sq.ft. were also claimed. On 27.5.1989, plaintiff filed Suit No. 733/89 for possession before the Additional District Judge which is also referred to as the previously instituted suit.
(IV)On 30.1.1990, plaintiff instituted present suit bearing No. 413/90 in this Court for recovery of the sum of Rs.7,64,096.64p. On account of damages for use and occupation for the period 1.5.1989 to 31.12.1989 at the rate of Rs. 8.00 per sq.ft. The plaintiff, thereafter, on 22.2.1990 also filed a separate suit for recovery of damages for use and occupation of the premises for the month of January, 1990, in the District Court, being Suit No. 46/90.
ON6.3.1991 both the suits for recovery and possession, i.e. Suit No. 733/89 and suit for recovery of damages for the month of January 1990, i.e. Suit No. 733/89, before the District Judge were consolidated and common issues were framed in both the suits.
THE defendants moved an application under Section 10 of the Code of Civil Procedure for stay of the suit bearing No. 46/90, in view of the prior institution and pendency of Suit No. 413/90 in this Court. Suit No. 413/90 in the High Court being for damages for the period 1.5.1989 to 31.12.1989 and Suit No. 46/90 in the District Court being for damages for the month of January 1990. The application was dismissed on 19.8.1992.
A Civil Revision Petition No. 23/93 was preferred by the defendant against the order dated 19.8.1992. The defendant urged before the Court that the plaintiff had himself accepted the consolidation of Suit No. 733/89, i.e. the suit for possession with Suit No. 46/90 being for damages for January 1990. Common issues were framed and common evidence was being led in both the cases. The application for stay under Section 10 had been moved with the object of getting the suit for possession stayed in the garb of stay of the suit for recovery. The High Court, in these circumstances, while accepting the revision and staying Suit No. 46/90, directed that Suit No. 733/89 for recovery of possession be separated from the suit for recovery, i.e. Suit No. 46/90. The trial of suit for possession could, thereforee, go on.
THE Plaintiff challenged the said order in Revision, by filing a Special Leave Petition, which has been dismissed by the Supreme Court with the observation that plaintiff may file the application in the High Court in the pending suit, seeking appropriate directions that evidence in the suit, pending in the District Court, may be treated as evidence in the present suit.
(V)Issues were framed in Suit No. 413/90 by this Court on 16.5.1994. The defendant then moved an application, viz. IA. 7329/94 under Order Xiv Rule 2 of the Code of Civil Procedure, praying that the crucial questions which were coming up for consideration were whether the tenancy of the defendant had been validly terminated and whether the protection of the Delhi Rent Control Act was available to the defendant or not? The defendant contends that matters in issue in the present suit and the Suit for possession, viz. Suit No. 733/89 being the same, the present suit, i.e. 413/90, was liable to be stayed under Section 10 of the Code of Civil Procedure.
(VI)In the meanwhile, the evidence of the parties in the Suit No. 733/89 before the District Judge had been concluded and the said suit for possession has been decreed vide judgment dated 4.11.1996. The defendant has filed an appeal, viz. RFA.430/96 in this Court, which has been admitted to hearing and stay of dispossession has been granted. Suit for damages, i.e. Suit No. 46/90 before the District Judge remained stayed.
(6) With the aforesaid factual background, the respective pleas and submissions of the parties in relation to the applications filed may be considered.
(7) The contention of the defendant in IA. 7329/94 is that the present Suit No. 413/90 was liable to be stayed in view of the previously instituted suit for possession, being Suit No. 733/89, now in appeal in this Court. Learned counsel for the defendant, Mr. Mukul Rohtagi submitted that even though the suit has been decreed, since an appeal, RFA.430/96, had been preferred by the defendant and it has been admitted, the legal position would remain the same. He argued that the appeal was continuation of the suit. He relied on Sagar Shamsher Jung Bahadur Rana Vs . Union of India & Ors. : AIR1979Delhi118 to urge that the appeal was a continuation of the suit and the provisions of Section 10 Civil Procedure Code applied to proceedings in appeal, emanating from the previous suit. Reliance was also placed by learned counsel for the defendant on the decision in the case Durga Dass Vs . Smt. Gitan Devi , wherein while considering a revision petition against refusal to grant stay under Section 10, Civil Procedure Code by the Senior Sub-Judge, the learned Judge quoted with approval the observations in Air 1931 Pc 263 as under:
'WHERE an appeal lies the finality of the decree, on such appeal being taken is qualified by the appeal and the decree is not final in the sense that it will form rest judicata between the parties.'
THE Court held that the controversy raised in the suit remains pending in the appeal and the appeal proceedings are a continuation of the suit. The Court in the said case would have allowed the revision petition but for the reason that on facts Section 10 Civil Procedure Code was otherwise not attracted. The submissions of Mr. Mukul Rohtagi in this regard are well-founded.
(8) It was urged that decree passed in the suit for possession, which has been assailed in appeal, has not become final and, thereforee, Section 10, Cpc, would continue to apply and the present suit was liable to be stayed. Learned counsel for the plaintiff on the other hand submitted that in view of the decree passed in the suit for possession, the findings therein were binding on the parties. The application for stay of the suit had become infructuous. The present suit should be permitted to be tried and was not liable to be stayed. It must be proceeded forthwith. Learned counsel for the plaintiff, in support of the applications, IAs. 11209/95 and 660/97 argued that Issue Nos.3 & 10 of the previous Suit No. 733/89 and Issue Nos.3 & 4 in the present suit were identical relating to whether there was one or more tenancy and whether there was a valid termination of tenancy? thereforee, the evidence led by the plaintiff on Issue Nos.3 & 10 in the earlier Suit No. 733/89 between the same parties should be permitted to be read as evidence in the present suit for the said issues. He argued that the plaintiff be further permitted to file on record in the present suit, the certified copies of all the documents which have been exhibited in evidence in Suit No. 733/89 for the purpose of the present suit. The submission really being that parties have already led evidence in Suit No. 733/89 on these issues and the finding of the court in that regard is final and, thereforee, the said evidence should be treated as evidence in the present suit. This would leave the plaintiffs to lead evidence only on the quantum of mesne profits and the rate thereof. Issue No. 2 in the present Suit No. 413/90 covers the question of entitlement to mesne profits and the rate thereof. Similar issue arises in Suit No. 46/90 before the District Judge, which remains stayed.
(9) Learned counsel for the plaintiff also relied on the observations made by the Apex Court while disposing of the Special leave Petition filed by the plaintiff against the order by which Suit No. 46 of 1990, being the suit for mesne profits for the month of January 1990, had been stayed in Civil Revision Petition No. 23/93. The Apex Court observed. 'We do not find any ground warranting interference. However, it is argued by learned counsel for the petitioner that there will be likelihood of delay in disposal of the suit pending in the District Courts. The evidence in that suit may be treated to be evidence to be recorded in the High Court. That would be a matter for the petitioner to file an application in the High Court in the pending suit and seek appropriate directions. That is not a ground for this Court to interfere with the impugned order. The Special Leave Petition is accordingly dismissed.'
(10) Let me notice the legal position in respect of application of Section 10 of the Code of Civil Procedure as well as exercise of inherent powers under Section 151 to secure the ends of justice in different situations emanating from application or non-application of Section 10 of the Code of Civil Procedure:
IT is now fairly well settled that the object of Section 10 of the Code Civil Procedure is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The requirement of Section 10 is that the matter in issue in the subsequent suit being directly and substantially in issue in the previously instituted suit. Section 10 is attracted when the subject-matter in both the proceedings is the same. Neither is the requirement that all the issues in the two suits be identical nor would Section 10 be attracted if merely one of the issues is identical. The test being that the matter in issue is directly and substantially the matter in issue in the subsequently instituted suit. In other words, the decision in the previously instituted suit should operate as rest judicata for the subsequently instituted suit. It is also well settled that Section 10 merely lays down the procedure and does not vest any substantive rights in the parties. It is for this reason that under the inherent powers under Section 151 of the Code, consolidation and analogous hearing of two suits is some times resorted to. Reference may be usefully made to the observations of the Allahabad High Court in P.P. Gupta Vs . East Asiatic Co., Bombay : AIR1960All184 :
'SECTION 10 does not go to the root of the jurisdiction of the Court trying the second suit, but merely lays down a rule of procedure; it directs the Court to wait till the decision of the earlier suit; and that the principle of consolidation in no way conflicts with this purpose of Section 10; on the contrary, it preserves and promotes it. Ultimately, the Court comes to hold that the words 'shall not proceed in any suit' in Section 10 Civil P.C. were intended to bar the separate trial of any suit in which the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties in the same Court or in any other Court. But these words do not apply to the simultaneous hearing of a later and an earlier suit, after consolidation of the two, if the matter in issue in both is directly and substantially the same. The Court went to the extent of saying that any interpretation of Section 10 which takes away the power of the Court to consolidate suits would hinder the policy and purpose of Section 10 itself....'
(11) Applying the aforesaid principles to the facts of the present case, it has to be recognised that the questions which arise for consideration in the previously instituted suit which is under appeal, i.e. Suit No. 733/89, is whether the tenancy of the defendant had been validly terminated and, if so, to what effect? Further, whether defendant is an unauthorised occupant and is liable to be evicted or not and whether the protection of the Delhi Rent Control Act is available to the defendant? The matter in issue in the previously instituted suits, i.e. Suit Nos. 733/89 and the present suit is between the same parties and common issues do arise, which would bring it within the matter being 'directly and substantially' the same. However, one of the conditions for application of Section 10 of the Code of Civil Procedure is not satisfied, viz. the Court of the District Judge in which the previously instituted suit for possession was pending, does not have the pecuniary jurisdiction to try and entertain and grant the relief of damages of Rs.7,64,096.64, sought in the present suit. In this view of the matter, one of the ingredients for application of Section 10 of the Code of Civil Procedure, viz. the Court in which the previous suit is pending should have the jurisdiction to grant the reliefs sought in the subsequent suit will not be satisfied even though the matter in issue being directly and substantially the same is reached. The position which emerges is as follows:
(I)The Court of the District Judge, while decreeing the Suit No. 733/89 for possession, has adjudicated upon and decided the questions relating to tenancy being single or otherwise as well as the validity of the termination notice.
(II)The decree in Suit No. 733/89 having been challenged in appeal, RFA.730/96, which has been admitted to hearing, would be regarded as continuation of the suit proceedings and the provisions of Section 10 of the Code of Civil Procedure would apply, as discussed in para (7) hereinbefore. @SUBPARA = (iii) The question which have been determined in the suit for possession, Suit No. 433/79, viz. the validity of the termination of tenancy, which are now assailed in appeal, RFA.430/96, would have a direct bearing on the decision in Suit No. 413/90 where the question of entitlement of mesne profits and damages of the plaintiff is to be gone into. In case RFA.430/96 is allowed by the Division Bench and it is held that the termination of tenancy was not lawful, then the plaintiff would not be entitled to damages and mesne profits and the entitlement would be to the agreed rent. Accordingly, the decision in the appeal would have a direct bearing on the decision in Suit for damages and mesne profits, viz. S. 413/90, pending in this Court. This would be the situation even if it si held that all the ingredients of Section 10 of the Code of Civil Procedure are not satisfied, viz. the District Court not having the pecuniary jurisdiction to grant the relief sought in the suit for damages. In these circumstances, it would be indeed be necessary to avoid any conflicting decisions that may emerge.
(IV)Regarding the prayer made by the plaintiff for the evidence led in the suit before the trial court, i.e. Suit No. 733/89, on the question of tenancy and its termination, i.e. Issue Nos.3 & 10 be read as evidence in the present suit for Issue Nos.3 & 4. The submission of the defendant is that the same cannot be permitted as it would amount to foreclosing and curtailing the defendant's right to cross-examine and lead such further evidence as he may like to do. Strictly speaking, the defendant is correct in his submission that there cannot be any curtailment of his right to cross-examine in the present Suit No. 413/90 or to lead any further evidence. However, in case RFA.430/96 is disposed of, the decision therein would operate as rest judicata and defendant would not be entitled to lead further or additional evidence.
(V)Suit No. 46/90 that had been ordered to be separated from Suit No. 733/89 continues to remain stayed in view of the Orders passed in Civil Revision 23/93.
(12) The question to be considered now is what should be the appropriate orders to be passed in the applications, considering the factual and legal position, as set out hereinbefore. We cannot lose sight of the fact that the initial lease deed by which the premises were let out expired in the year 1969. This was followed by institution of proceedings for eviction by the plaintiff/landlord under the Delhi Rent Control Act. Upon amendment of the Delhi Rent Control Act, the first Suit for possession, viz. Suit No. 733/89 was instituted. Thereafter, on 31.1.1990 the suit for damages and mesne profits of Rs.7,64,096.64 for the period from 1.5.1989 to 31.12.1989 was instituted. This was followed by Suit No. 46/90 for damages for the month of January in the District Court. The defendant in this case, after consolidation of Suit No. 46/90 with Suit No. 733/89, sought the stay on the ground that the matter in issue was directly and substantially the same in Suit No. 413/90. The progress of the Suit was, thus, delayed for sometime and, ultimately, as a result of orders in Civil Revision 23 of 1993, Suit No. 46/90 was separated and directed to be stayed. Litigation reached up to the Supreme Court. After lapse of considerable period of time, the defendant chose to move the application for stay of the suit for damages and possession, viz. Suit No. 413/90, under Section 10 of the Code of Civil Procedure by way of IA. 7329/94, on the ground that the matter in issue was 'directly and substantially' the same as in the suit for possession, viz. Suit No. 733/89. The suit for possession being Suit No. 733/89, as stated earlier, after the decree is pending in appeal. The attempt is to derail the trial of Suit No. 413/90. Accordingly, in case the proceedings in the suit are stayed, pending the disposal of the appeal and are taken up after the decision in RFA.430/96, the plaintiff would then be required to lead evidence in respect of issues relating to mesne profits and quantum thereof.
(13) Having considered the matter in totality and the fact that strictly speaking all the ingredients of Section 10 of the Code of Civil Procedure are not satisfied, this is a fit case where inherent powers under Section 151 of the Code of Civil Procedure, as discussed in para (10) above, should be invoked to subserve the ends of justice.
(14) The following orders and directions would meet the ends of justice:
(I)In exercise of powers under Section 24 of the Code of Civil Procedure, Suit No. 46/90, which is pending before the District Judge, Delhi, titled Desh Bhushan Jain v. Dr. Krishan Chander Mahajan and another, is withdrawn from the said Court and transferred to this Court. It is consolidated with Suit No. 413/90 and will be tried Along with it. (II)Parties are permitted to lead evidence in Suit No. 413/90 on the question of claim for mesne profits and damages for use and occupation.
However, the fact that RFA.430/96 is pending, final orders in the suit shall not be passed pending the order in appeal.
THIS course of action would enable the parties to complete the evidence and have the suit argued and disposed of as soon as the decision in appeal is available. It would, to some extent, mitigate the hardship being caused to the parties by the delay entailed in the legal process.
EVENthough, as observed earlier, all the ingredients for application of Section 10 of the Code of Civil Procedure are not satisfied, conflicting decisions need to be avoided and, thereforee, the above directions are being given in exercise of inherent powers of the Court.
(15) IAS.7329/94, 11209/95 and 660/97 shall stand disposed of in terms of the aforesaid directions.