Dhuda @APPELLANT@Hash Bhanwar Lal

The petitioners have preferred this writ petition claiming the following relief :-

“It is therefore, prayed that the writ petition may kindly be allowed and :

(i) By an appropriate writ, direction or order, the order dated 05.12.2015 (Annex.8) passed by the court of Civil Judge (Senior Division), Sanchore in

Civil Original Suit NO> 39/2015 may kindly be quashed and set aside and it may further be declared that the suit No. 39/2015 is maintainable and be

heard and decided separately.”

The respondents no.1 and 2 filed a suit before the Court of Civil Judge (Senior Division), Sanchore seeking easementary rights and permanent

injunction against Sanwata and others. The present petitioners plaintiffs filed a suit before the Court of Civil Judge (Senior Division), Sanchore seeking permanent and mandatory injunction to the effect that the land falling in khasra no.1656 measuring 0.63 hectares is being used by the plaintiffs and claimed relief pertinent to its usage.

Counsel for the petitioners has made a limited submission that the earlier suit was for easementary rights and the present suit is for mandatory

injunction and thus, both the suits have different reliefs. Counsel for the petitioners further submits that the petitioners were not party in the first suit.

Counsel for the petitioners has shown map Annex.3, as per which the earlier dispute was pertaining to portion marked as ‘A to B’ whereas the

present suit relates to the portion marked as ‘C to D’. Counsel for the petitioners has relied upon the judgment of the Hon’ble Supreme

Court in the case of Aspi Jal & Anr. vs. Khushroo Rustom Dadyburjor reported in 2013(1) WLC (SC) Civil 105, paras 13, 14 and 15 whereof read as

under :-

“13. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue

in the previous suit but the question is what “the matter in issue” exactly means? As in the present case, many of the matters in issue are

common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in

issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was

similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction.

Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case. Reference in this connection can be made to a decision of this Court in Dunlop India Limited vrs. A.A.Rahna & Anr. (2011) 5 SCC 778 in which it has been held as

follows:

“35. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the

issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June 1998, in the second set of petitions, the period of non-occupation commenced from September 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the appellate authority because till 2-

8- 1999, the premises were found kept open and alive for operation, The appellate authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K.Agarwal on 1-10-2001 that the Company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1-10-2001; that no activity had been done in the premises with effect from 1-10-2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the

Rent Control Court and the appellate authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six

months without any reasonable cause.” (Underlining ours)

In view of what we have observed earlier, the orders passed by the trial court as affirmed by the High Court are vulnerable and therefore, cannot

be allowed to stand.

Mr. Divan prays that direction may be issued to the trial court to hear all the suits together. We restrain ourselves from issuing such direction but

give liberty to the parties if they so choose to make such a prayer before the trial court. Needless to state that in case such a prayer is made, the trial

court shall consider the same in accordance with law.”

Counsel for the respondents opposes the submissions made on behalf of the petitioners on the ground that the learned Court below has rightly held

that both the suits broadly are pertaining to the same dispute and, therefore, the principles of res-judicata shall apply.

After hearing the learned counsel for the parties and after perusing the record, this Court finds that even when the issue was similar and the rights

were interlinked but since the basic nature of the suit was different and the petitioner was not a party in the earlier suit, therefore, continuance of the suit would not prejudice either of the parties.

In light of the above, this writ petition is allowed. The impugned order dated 05.12.2015 (Annex.8) passed by the court of Civil Judge (Senior

Division), Sanchore in Civil Original Suit NO.39/2015 is quashed and set aside. However, the respondents shall be at liberty to make a prayer before the trial Court to consider hearing of both the suits together, which prayer shall be considered strictly in accordance with law.