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Judgment
G.R. Udhwani, J.—The petitioner is the original defendant in two suits being Civil Suit No. 3161 of 1990 instituted by the respondents
against encroachment of 3,600 sq. ft. of the property bearing Final Plot No. 128 paiki of Ellis bridge Town Planning Scheme No. 3 situated near
Jammanshah Dargah and Jivabhai Chamber, Naranpura, Ashram Road, Ahmedabad. In H.R.P. Suit No. 1227 of 1994 instituted by the
respondents herein eviction of the petitioner herein on the ground of arrears of rent in respect of the property bearing Final Plot No. 128 paiki of
open land admeasuring about 1,200 sq. ft. of the same description, as indicated in the above suit was sought. After service of summons, the
petitioner filed a written statement in Civil Suit No. 3161 of 1990, inter alia, contending that he was the tenant of the respondents with regard to
5,500 sq. ft. of the land of the same description, as indicated above.
Since, according to the petitioner, both the suits raised the same issues substantially and directly, one of the suits was required to be stayed, and
therefore, an application Exh. 120 came to be tendered by him in H.R.P. Suit No. 1227 of 1994 in the Small Causes Court at Ahmedabad. The
respondents contested the same and ultimately, it came to be rejected. Hence, this petition.
The learned Counsel for the petitioner invited the attention of this Court to Secs. 10 and 11 of the Code of Civil Procedure, 1908 (for short
C.P.C.""); the prayer clause and the description of the properties in both the suits as also decisions rendered in National Institute of Mental Health
and Neuro Sciences Vs. C. Parameshwara, and Manubhai Devkaran Patel and Others Vs. Alamsai Rajabsai Sai, and also some of the issues
raised in both the suits and submitted that the matter in both the suits pertain to the Final Plot No. 128 and in the pleadings, the dispute was with
regard to only measurement and determination of one suit would bar other suit by principles of res judicata. He, therefore, contended that the
impugned order passed by the trial Court may be set aside and one of the suits must be stayed. The first mentioned decision cited by the learned
Counsel for the respondents was sought to be distinguished by the learned Counsel with the contention that the Hon''ble Supreme Court drew
distinction between the proceedings in the writ petition and the matter pending before the Labour Court and thus it was held that the principles
under Sec. 10 of the C.P.C. will not apply.
Resisting the petition, the learned Counsel for the respondents also invited the attention of this Court to the above description of the property in
both the suits and submitted that the demised property; the possession of which was sought from the Rent Court on the ground of arrears of rent
was only 1,200 sq. ft. and since additional 3,600 sq. ft. was encroached upon by the petitioner, the only remedy available to the respondents was
to file a Civil Suit and not H.R.P. suit and accordingly, it was instituted. He also submitted that the area of property in both the suits as also the
scope of the suit was different and decreeing the suit by the Rent Court will enable the respondents to get possession of the demised properties,
whereas decree in the Civil Suit would enable the respondents to get the possession of additional 3,600 sq. ft. of land and that the Rent Court
would only decide the rights and liabilities under the Rent Act, whereas other rights will be addressed in the Civil Suit. In his submission, therefore,
the decision in one suit will not operate as res-judicata in another suit. While inviting the attention of this Court to the decision in C. Parameshwara
(supra), it was submitted that the Hon''ble Supreme Court laid down a proposition of law that when the subject-matter is dealt with under the
different statutes, the suit under Sec. 10 of the C.P.C. cannot be stayed. He, therefore, submitted that Sec. 10 of the C.P.C. has rightly not been
applied by the Small Causes Court and prays that the petition be dismissed.
Having considered the arguments advanced by the parties and perused the relevant papers, it will be beneficial to refer to certain provisions of
law attracted in the facts of the present case. For beneficial appreciation, relevant parts of Secs. 10 and 11 of the C.P.C. are quoted hereinunder:
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 continues by the Central Government and having like jurisdiction, or before the Supreme Court.
Res judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in
issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such
Court.
xxx xxx xxx
The important ingredients are:- ""matter"", ""directly and substantially in issue"", ""having jurisdiction to grant relief"", ""competent to try suit"", ""previous
suit"" and ""former suit"" respectively and Explanation III to Sec. 11 of the C.P.C. clarifies that the matter above-referred must, in the former suit,
have been alleged by one party and either denied or admitted, expressly or impliedly, by the other and Explanation VIII to Sec. 11 of the C.P.C.
contemplates that even if the common issue is decided by the Court of limited jurisdiction, it will be res judicata in a subsequent suit, Therefore, to
appreciate the controversy, each of these relevant ingredients is required to be addressed.
It can be seen that under Sec. 10 of the C.P.C., there is a prohibition of a trial of a subsequent suit if ""matter"" in the subsequently instituted suit is
also ""directly and substantially in issue"" in previously instituted suit. A question is whether each of the individual issues raised in the suits is ""matter
or suit as a whole including its relief clause is a ""matter"" within the meaning of the said Section? It is worthwhile to mention that after completion of
the pleadings, issues in a Civil Suit are required to be settled under Order 14 of the C.P.C. As defined in sub-rule (1) thereof, affirmation of
material fact/law by one party and denial by other gives rise to issues. As per sub-rule (2) thereof, material propositions are those propositions of
law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. As per sub-rule
(3), each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. Thus, ""issues"" are points on
which the parties have difference of opinions requiring determination by the competent Court. The term ""matter"" is, however, not defined in C.P.C.
However, it can be noticed that Secs. 10 and 11 use the term ""matter"" as distinguished from issues referred to in Order XIV. Reading Secs. 10
and 11 with Order XIV, it is clear that pleadings and documents represent ""matter"" and to address the matter, the Court is required to raise distinct
issues"". Therefore, the pleadings as a whole including prayer is a ""matter"", and individual issues do not constitute the ""matter"". Sections 10 and 11
will be attracted only if the ""matter"" in two suits is identical as held by the Hon''ble Supreme Court in National Institute of Mental Health and Neuro
Sciences (supra).
In two different suits, either under same competent jurisdiction or different competent jurisdictions, identical issues may arise, but particularly in
the suits of different competent jurisdictions the scope of the suit and the reliefs and the remedies that may be available to a person may be different
and remedy available in one suit of one competent jurisdiction may bar the suit in another jurisdiction. However, in the suit of different competent
jurisdictions if common issue crop up, the Court may have to determine such issues to grant or refuse the relief. Thus, both such suits may not be
identical and trial of each of them may be necessary for reliefs available to the plaintiffs under different jurisdictions. Under such circumstances, can
it be said that suit in another jurisdiction will be barred? In this context, the phrase ""directly and substantially"" in Secs. 10 and 11 assumes great
significance. The phrase suggests that subsequent suit will not be barred if ""matter"" involved in it is ""incidentally and collaterally"" in issue.
Determination of such incidental and collateral matter may be necessary in a subsequent suit to do complete justice to the parties and to reach at
just and lawful conclusion. If, in such circumstances, subsequent suit is stayed, it would rather delay the trial causing serious injustice to a suitor.
That is not the object of Sec. 10 of the C.P.C.
At this stage, it is material to refer to C. Parameshwara (respondent) (supra). In that case, the respondent was dismissed from service for having
misappropriated the drugs to the extent of Rs. 1,79,668-46 and a Civil Suit was instituted to recover the said amount and in the meanwhile, on
respondents seeking a reference, the State Government referred the dispute as to dismissal to the Labour Court where he prayed relief for
reinstatement with full back wages and the relief was granted, the writ petition was preferred before the High Court and by interim order, operation
of the order of reinstatement was stayed. Thereafter, an application under Sec. 10 of the C.P.C. was unsuccessfully moved before the Court in
which the suit was filed. However, the suit came to be stayed by the High Court. The Hon''ble Supreme Court interpreted Sec. 10 of the C.P.C. in
Paragraph 8 and laid down the following propositions of law:
The object underlying Sec. 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same
matter in issue. The object underlying Sec. 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting
findings on issues which are directly and substantially in issue in previously instituted suit. The language of Sec. 10 suggests that it is referable to a
suit instituted in the Civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Sec. 10 is to
prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in
issue. The fundamental test to attract Sec. 10 is, whether on final decision being reached in the previous suit, such decision would operate as res
judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words
in Sec. 10 are ""the matter in issue is directly and substantially in issue"" in the previous instituted suit. The words ""directly and substantially"" in issue
are used in contradistinction to the words ""incidentally or collaterally in issue"". Therefore, Sec. 10 would apply only if there is identity of the matter
in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.
Thus, following aspects are made crystal clear by the Hon''ble Supreme Court:
I. The object underlying Sec. 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same
matter in issue.
II. Conflicting findings on issues which are directly and substantially in issue in previously instituted suit are sought to be avoided.
III. It is referable to a suit instituted in the Civil Court and it cannot apply to proceedings of other nature instituted under any other statute.
IV. The fundamental test to attract Sec. 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-
judicata in the subsequent suit.
V. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical i.e. all the issues must be identical.
VI. The words directly and substantially in issue are used in contradistinction to the words incidentally or collaterally in issue.
Thus, it is clear that the word ""matter"" used in the above provisions is whole of the suit and not some overlapping collateral and incidental
issues. The matter involved in H.R.P. suit arose out of relationship of landlord and tenant and the matter before the Court was for eviction on the
ground of arrears of rent. This relief was available to the suitor only in H.R.P. suit and thus suit was absolutely necessary. The petitioner admitted
the fact that he was a tenant; but not in arrears, in the H.R.P. suit; and thus, the matter which was directly and substantially in issue in the H.R.P.
suit, was as regards the petitioner being the tenant in arrears of rent. The petitioner also pleaded that, in fact, he was the tenant in respect of 5,500
sq. ft. of the land. In the suit based on arrears of rent, the issue as to whether the petitioner was a tenant in respect of 5,500 sq. ft. of land, would
not directly and substantially arise since it did not have any bearing on the matter in issue i.e. tenant being in arrears.
The question which is required to be addressed, at this stage, is whether in the Civil Suit, the matter is the same and identical? In the Civil Suit,
the respondents have prayed for possession of the piece of land admeasuring 3,600 sq. ft. of the same description. Admittedly, the said piece of
3,600 sq. ft. of land is different than 1,200 sq. ft. of land. The suit is based upon encroachment allegedly made by the petitioner over the said piece
of land, although the petitioner denies such encroachment in the written statement. Therefore, encroachment is directly and substantially in issue in
Civil Suit. On proof of encroachment, relief can be granted only by a Civil Court and not by a Rent Court, and therefore, such an issue is not
directly and substantially in issue in the H.R.P. Suit.
Incidentally, it has been observed that one of the issues raised by both the Courts is in relation to entitlement of the possession by plaintiff. In
the rent suit, the decree can be passed on proof of arrears of rent and in the Civil Suit, a decree can be passed for possession on proof of
encroachment. Therefore, arrears of rent and encroachment being material proposition of facts asserted by one party and disputed by other within
the meaning of Order 14 of the C.P.C. must constitute an issue and entitlement to possession is merely consequence of proof of
arrears/encroachment as the case may be. Therefore, it cannot be said that the issue in relation to the possession is really an issue involved in both
the suits.
Considering the above legal and factual position, what can be deduced is that each individual issue by itself cannot constitute a matter involved
in the suit. Some issues may be common, the matter as well as the reliefs may be different as in the present case. It cannot be disputed that the
Rent Court under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is incompetent to grant any relief in absence of the
relationship of the landlord and tenant. The relief based upon the encroachment is beyond the purview of the Rent Court. Similarly, relief based
upon relationship between the landlord and tenant is unavailable in the Civil Suit. Thus, there is no question of two Courts possessing competent
concurrent jurisdiction when their jurisdictions and area of inquiry is different. The matter directly and substantially in issue in one suit is not directly
and substantially in issue in other suit.
In Alamsai Rajabsai Sai (supra), the Court was not concerned with Sec. 10 of the C.P.C. Only issue before the Court was whether the
decision on the issue under Sec. 9 of the C.P.C. would constitute res judicata in the suit instituted under the Bombay Rent Act. It is noticed that the
identical issue in both the proceedings i.e. Civil Suit and the proceedings under the Rent Act was already decided in a Civil Suit, and therefore, the
Court ruled that such identical issue will operate as res judicata in the subsequently instituted suit even if the subsequently instituted suit was in the
Court having limited jurisdiction. Both the Courts were competent to decide the issue. In the instant case, as pointed out hereinabove, none of the
Courts is competent to decide issues raised in other suit and as held by the Hon''ble Supreme Court, for the purpose of Sec. 10 of the C.P.C.
whole matter i.e. whole suit must be identical which is not the fact situation.
In above view of the matter, there is no substance in the arguments advanced by the learned Advocate for the petitioner. The petition is,
therefore, required to be dismissed. Accordingly, it is dismissed. Rule is discharged. Interim relief, if any, granted earlier stands vacated. There shall
be no order as to costs. Considering the fact that both the suits are quite old, it will be appropriate if they are expeditiously proceeded with. Order
accordingly.