ORDER
R.M.S. Khandeparkar J.
1. This is a revision application against the order dated 1-2-1994 passed in R.C.S. 114/94 by the 5th Joint Civil Judge, Junior Division. Nagpur, thereby, allowing the application under section 10 filed by the non-applicants herein.
2. The applicant herein filed a Civil Suit No. 293/92 against the non-applicants on the ground of harassment caused by the non-applicants with the intention to compel the applicant to vacate the leased premises. The leased premises comprised of 3 rooms owned by the non-applicants and the lease commenced from the year 1972. The relief sought by the applicant in the said suit was that of the permanent injunction to restrain the non-applicants from disturbing the lawful possession of the applicant over the leased premises and also to restrain the non-applicants from disturbing the pipe lines and the drain. Some times in the year 1992, the non applicant No. 3 herein namely Nagpur Improvement Trust, acquired a portion of the leased premises for the purpose of widening of the road. In fact one of the 3 rooms from the leased premises was sought to be acquired by the said acquisition proceedings. The Notice dated 21-5-1993 regarding acquisition was received by the applicant from the Nagpur Improvement Trust in respect of the said acquisition proceedings. It appears that meanwhile the non-applicant informed to the Nagpur Municipal Corporation that, in view of the acquisition and consequent demolition of a portion of his house i.e. the premises in question, there is a danger to the stability of the remaining portion thereof and therefore the entire house be demolished. It is the contention of the applicant that the said letter was written by the non-applicant with the intention to evict the applicant from the leased premises. Thereupon, in order to safeguard the rights of the applicant, he filed another Suit being R.C.S. No. 114/94 against the non-applicant seeking the relief of injunction to restrain the non applicants from demolishing the remaining 2 rooms of the leased premises and also to restrain them from causing obstruction to the applicant in taking precautionary measures for the protection of the said 2 rooms left out after the acquisition of one room by the Nagpur Improvement Trust. On receipt of summons of the said R.C.S. No. 114/94, the non-applicants herein filed an application under section 10 of Civil
Procedure Code for stay of the said suit on the ground that the applicant had already filed a suit bearing No. R.C.S. 293/92 and the same is pending and the reliefs claimed in both the suits relate to the same premises, and therefore, the subsequent suit is liable to be stayed in terms of section 10 of Civil Procedure Code. The trial Court, by the impugned order allowed the said application.
3. While assailing the impugned order, the learned advocate appearing for the applicant submitted that the trial Court erred in allowing the application for stay merely on the ground that the reliefs prayed in the two suits are identical and the parties as well as the property involved in the two suits is one and the same. He has further submitted that the trial Court failed to consider that, in order to invoke the powers under section 10 of Civil Procedure Code, it is necessary to see, whether the field of controversy involved in the two suits is substantially the same or not and the same to be determined on the basis of the pleadings in both the suits and not by merely referring the reliefs prayed for in the two suits. Besides, according to the learned advocate, the reliefs prayed in the subsequent suit are totally different from those which are sought in the earlier suit. The learned Advocate further submitted that the earlier suit relates to the controversy arisen from the harassment caused to the applicant by the non-applicants for compelling him to vacate the premises, whereas in the later case, the matter relates to the right of the applicant to retain the portion of the premises left out after the acquisition by virtue of right assured to him under section 108(e) of Transfer of Property Act.
4. Upon hearing the advocate for the parties and on going through the record, it is seen that the trial Court by the impugned order has stayed R.C.S. No. 114/94 on the ground that the prayers in both the suits are identical and that the parties to both the suits as well as the title under which they are litigating are not different. The trial Court has relied upon the judgment of this Court in the matter of Jai Hind Iron Mart v. Tulsiram Bhagwandas, , wherein it is held that the field of controversy in two suits must be substantially the same in order to invoke the powers under section 10 of Civil Procedure Code to order the stay of subsequent suit.
5. Bare reading of section 10 of Civil Procedure Code discloses that, in order to enable the Court to order the stay of the subsequent suit, it is necessary that the issue in the said suit should have been directly and substantially a issue in the previously instituted pending suit between the same parties. This has been further clarified by this Court in the matter of Jai Hind Iron Mart (supra) which has been referred to by the trial Court in its judgment, wherein it has been clearly observed that, what section 10 requires is that the matter in the issue in two suits should be directly and substantially the same. In other words, it is not mere identity of the subject matter, but it is the identity between the field of controversy in the two suits that should be substantially the same. Bearing in mind this principle and the provisions of section 10 of Civil Procedure Code, if one peruses the impugned order, it is seen that the trial Court, instead of considering the pleadings in both the suits and instead of finding out the scope of controversy in both the suits, merely on the basis of identity between the prayers, the parties and the premises in both the suits, has reached to the conclusion that there is identity of the subject matter and that field of controversy in both the suits is directly and substantially the same. Failure on the part of the trial Court to properly analyse the pleadings in both the suits and to apply its mind to find out, whether the field of controversy in the earlier suit is identical to that of later suit, clearly amounts to improper exercise of the jurisdiction by the trial Court which passed the impugned order.
6. Undisputedly, the proceedings for the acquisition of a part of leased premises for the purpose of widening the road was undertaken by the Nagpur Improvement Trust after filing of the previous suit. Earlier suit was filed by the applicant on account of alleged harassment by the non-applicants with the intention to compel the applicant to vacate the premises, and therefore, had sought protection from the Court from illegal acts of the applicant. Perusal of the plaint in the subsequent suit discloses that, on account of the acquisition of a room of the leased premises, the landlord had informed the Corporation for demolition of the entire premises expressing apprehension of instability of the remaining portion of the premises. As rightly submitted by the learned advocate for the applicant, in the subsequent suit, the Court will have to consider the rights of the applicant, as regards the remaining portion of the premises, which are left out after acquisition and in particular in terms of section 108(e) of Transfer of Property Act, considering the fact that the entire premises were leased out by the non-applicants to the applicant since 1972. In other words, the field of controversy in the subsequent suit relates to the issue regarding the right of the applicant as the lessee to continue to be in occupation of the left out portion after acquisition of part of leased premises and the option as regards those rights. On the other hand, in the earlier suit, the issue relates to alleged harassment by the non-applicant with the intention to compel the applicant to vacate the leased premises. In other words, the field of controversy in the two suits cannot be said to be identical in any manner. The trial Court having totally ignored this aspect while delivering the impugned order has acted with material irregularity and certainly warrants interference by this Court in its revisional jurisdiction. As already seen above, since the field of controversy in the two suits cannot be said to be identical of similar in any manner, the question of staying R.C.S. No. 114/94 on account of R.C.S- No. 293/92 does not arise.
7. In the result, the revision application succeeds and is hereby aliowed. The impugned order is quashed and set aside The non-applicants Nos. 1 and 2 shall pay costs of Rs. 1,000/- to the applicant. The interim relief granted on 3-2-1994 in this Revision Application shall continue till the disposal of the application for temporary injunction filed by the applicant in R.C.S. No. 114/94. The trial Court is directed to dispose of the said Temporary Injunction application within the period of 3 months from the date of receipt of writ of this Court, after giving fair opportunities to all the parties of being heard and thereafter report the compliance of this order to this Court.
8. Revision allowed.