Dilip Gupta, J.@mdashWrit Petition No. 18592 of 2011 has been filed for quashing the order dated 19th February, 2011 passed by the Estate Officer, Meerut Cantt. Meerut by which the application filed by the petitioner under Section 10 of the Code of Civil Procedure (hereinafter referred to as the ''CPC'') for stay of the proceedings before the Estate Officer in Case No. 6 of 2010 instituted against the petitioner under Section 4 of the U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (hereinafter referred to as the ''Act'') since the previously instituted Original Suit No. 1382 of 2010 was pending in the Court of Civil Judge (Senior Division) Meerut, has been rejected.
2. Writ Petition No. 18595 of 2011 has been filed for quashing the order dated 19th February, 2011 passed by the Estate Officer, Meerut Cantt. Meerut by which the application filed by the petitioner under Section 10 of the CPC for stay of the proceedings before the Estate Officer in Case No. 7 of 2010 instituted against the petitioner under Section 7 of the Act since the previously instituted Original Suit No. 1382 of 2010 was pending in the Court of Civil Judge (Senior Division) Meerut, has been rejected.
3. The dispute in the present petitions relate to a Community Hall at Cariyappa Road, B.C. Bazar, Meerut Cantt. Meerut of which the Cantonment Board, Meerut is the owner. It is submitted that the said Community Hall with appurtenant land was given on lease by the Cantonment Board to the petitioner in terms of the agreement executed between the parties on 11th May, 2010. However, on 17th August, 2010 the Cantonment Board published an auction notice inviting tenders in respect of the said property. The petitioner filed Original Suit No. 1382 of 2010 for a decree of permanent injunction to restrain the defendants from interfering with the physical possession and use and enjoyment of the property and to restrain the defendants from dispossessing the petitioner. A decree for mandatory injunction was also claimed for renewal of the lease upto 2013. The Trial Court granted temporary injunction in favour of the plaintiffpetitioner on 12th November, 2010.
4. The Cantonment Board, however, initiated proceedings for eviction of the petitioner under Section 4(1) of the Act. On receiving notices, the petitioner moved an application under Section 10 of the CPC for stay of the proceedings before the Estate Officer as Original Suit No. 1382 of 2010 had been previously instituted by the petitioner. This application was rejected by the orders dated 19th February, 2011.These orders have been impugned in the present petitions.
5. Sri K.K. Arora, learned counsel appearing for the petitioner submitted that since the matter in issue in the proceedings under the Act is also directly and substantially in issue in the previously instituted Original Suit No. 1382 of 2010 between the same parties, the Estate Officer could not have proceeded with the case. It is his submission that the proceedings before the Estate Officer are actually proceedings in a Suit. He has also submitted that even otherwise the principles of Section 10 CPC should be applied to the proceedings and in support of his contention he has placed reliance upon the decisions of the Supreme Court in lal Chand (Dead) by L.Rs. & Ors. Vs. Radha Krishan (1977) 2 SCC 88 and in Brij Narain Singh Vs. Adya Prasad (Dead) & Ors. AIR 2008 SC 1553.
6. Sri M.I. Khan, learned counsel appearing for the respondents has, however, contended that Section 10 of CPC shall not apply to the proceedings pending before the Estate Officer as proceedings under Section 4 of the Act are not proceedings in a Suit and in support of his contention he has placed reliance upon the decision of the Gujarat High Court in Gujarat State Road Transport Corporation, Bhavnagar, Vs. Vimlaben L. Shah, AIR 1995 Gujarat 220.
7. In order to appreciate the submission advanced by learned counsel for the parties, it will be appropriate to refer to the provisions of Section 10 CPC which are as follows:
"10. 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 continued by the Central Government and having like jurisdiction, or before the Supreme Court.
ExplanationThe pendency of a suit in a foreign Court does not preclude the Court in India from trying a suit founded on the same cause of action."
8. It is clear from a perusal of the said Section 10 CPC that there should be two Suits instituted between the same parties. It is also necessary that the matter in the subsequent suit should also be directly and substantially in issue in the previously instituted suit between the same parties or between the parties under whom they are litigating. In the present case the previously instituted suit is Original Suit No. 1382 of 2010. The subsequent case is the case pending before the Estate Officer under Section 4 of the Act. It has, therefore, to be seen whether the proceedings before the Estate Officer under the Act can be said to be a proceeding in a Suit.
9. The Supreme Court in National Institute of Mental Health & A/euro Sciences Vs. C. Parameshwara, 2004 AIR SCW 6900, examined whether Section 10 CPC will be applicable to proceedings before the Labour Court. It was held that the proceedings before the Labour Court cannot be equated with the proceedings before the Civil Court and so Section 10 CPC cannot be applied. The relevant observations are :
"8. The object underlying section 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 section 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 section 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 section 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 section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit..............
10. As stated above, section 10, CPC is referable to a suit instituted in a civil Court. The proceedings before the Labour Court cannot be equated with the proceedings before the Civil Court. They are not the Courts of concurrent jurisdiction. In the circumstances section 10, CPC has no application to the facts of this case."
(emphasis supplied)
10. Similar issue was examined by the Full Bench of this Court in flam Charan Vs. State of U.P. & Ors., 1979 A.L.J. 166. It was held that proceedings under the Ceiling Act cannot be stayed under Section 10 of CPC and the observations are as follows:
"27. Learned counsel then submitted that proceedings under the Ceiling Act having been launched later, they were liable to be stayed under Section 10 of the Code of Civil Procedure.
28. In Kshetrapal Singh v. State of U. P., 1975 All WC 618, a Bench of this Court has repelled a similar submission. It was held that Section 10, C. P. C. is not applicable to proceedings under the Ceiling Act, because by virtue of Section 37 only the procedure prescribed by the Code of Civil Procedure for trial of suits has been made applicable. Section 10 relates to jurisdiction of Courts. The same will not apply. In my opinion this decision lays down the correct law."
11. In Usha Rani & Ors. Vs. M/s Indermal & Sons & Ors., AIR 1988 Raj. 223, the Rajasthan High Court also examined whether Section 10 CPC will apply to proceedings under the Arbitration Act and it was observed :
"4. It may be stated straightway that the order dt. Oct. 15,1982 cannot be sustained One test of the applicability of S.10, C.P.C. to a particular case is whether, on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Proceedings under S.8 read with S.20 of the Act by virtue of SubSec. (2) of S.20 of the Act have to be numbered and registered as a suit between one or more parties as plaintiff and the other as defendant, as it is well known that the suit is registered by filing a plaint. In Inderpal Singh Hassanwalia v. M/s. Bir Tibetan Woollen Mills, AIR 1974 Delhi 95, an application under S.20 of the Act was filed by Fnderpal Singh praying that the agreement be filed in the Court and arbitrator may be appointed. An objection was raised on behalf of the defendants that on Nov. 24,1969 a suit for injunction was filed in the Court and the suit wasbased on agreement dt. Mar. 10,1969. It is further stated that the application under S.34 of the Act was filed and that the suit should be stayed. The question before the Court was as to whether S.10, C.P.C. can apply where one of the two proceedings is not a suit. The Court in paras 12 and 13 of its judgement referred to the case law on the point and observed that:
"This argument can be disposed of on the short ground that �.10 of the Code of Civil Procedure applies only to suits and cannot apply where one of the two proceedings is not a suit."
Reference in that case was made to the case of Gurbakhsh Singh v. Sant Ram, AIR 1929 Lah 533 and it was held that S.10 did not apply to applications under para 20 Schedule 2, C.P.C. as they are not the plaint or registered as suit. Another case on which reliance was placed in the aforesaid case is Ruby General Insurance Co. Ltd. v. Bharat Bank Ltd., AIR 1950 East Punj 352, wherein it was held that the proceedings under S.20 Arbitration Act are not suit. In re Mrs. Violet Peterson, AIR 1940 Oudh 113, a view has been taken that in the case of an application for grant of probate the procedure of a suit shall be followed and not that proceedings on becoming contentious, shall become regular suit instituted on the date of their becoming contentious, and therefore S.10, C.P.C. is not strictly applicable. Therefore, merely because SubSec. (2) of S.20 of the Act provides, that the application shall be numbered and shall be registered as suit it cannot be said that S.10. C.P.C. will apply. It may be stated that earlier a suit for dissolution of partnership was filed by the petitioner and an application under S.34 of the Act was made and thereafter this Court had stayed the trial of the suit with the observations that the petitioner is directed to have the dispute which is the subject matter of the suit adjudicated by arbitration in accordance with the arbitration agreement contained in the partnership deed. Thus, the suit was stayed. It has already been stated that it was under the orders of the Court that the petitioners filed an application under S.8 read with S.20 of the Act. I am of the opinion that if a suit for compensation or other proceedings is pending under the Arbitration Act, S.10, C.P.C. cannot apply and the proceedings under the Act cannot be stayed. Merely because the application under S.20 of the Act is registered as a suit, it does not become the suit within the meaning of the Code of Civil Procedure, and S.10, C.P.C. will have no application."
(emphasis supplied)
12. The Madras High Court in S.D. Dhandapani Vs. The Branch Manager, Indian Overseas Bank, AIR 2002 Mad. 442, also examined whether Section 10 CPC shall apply to Company proceedings. The Court held that it does not apply and the observations are:
"4. At the outset. I shall state that Section 10 C.P.C. would not at all apply in this case, because the company petition pending before this Court cannot be termed to be a suit and therefore. Section 10 C.P.C. cannot be invoked by the Court, in which the suit for recovery of money is pending, to stay the proceedings of the suit.
5. As per Section 10 C.P.C., 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.
6. The word ''suit'' is important for our purpose. As per the provisions of Order 4 Rule 1, C.P.C. every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in its behalf. Therefore, the word ''suit'' ordinarily means a civil proceeding instituted by presenting a plaint.
7. In a company proceedings, no plaint is presented and hence, it cannot be regarded as a proceeding based on a suit. Therefore, when the proceedings are not based on a suit, they cannot be regarded as a trial of a suit and hence, the suit for recovery of money is pending before the trial Court could not be stayed.
8. This is very clear from the reading of Section 10 C.P.C. While interpreting the said Section, the Rajasthan High Court gave the same ruling in Punjab National Bank v. Gajendra Singh (2001 (1) Civ. L.R. 431 (Raj.)); Jaipur Vastra Vyopar Sangh Ltd. v. Shyam Sunder lal Patodia AIR 1970 Raj 91); and Ladu lal Jain v. Manager, Bank of Baroda (1997 DNJ (Raj) 260)." (emphasis supplied)
13. The Gujarat High Court in Gujarat State Road Transport (Supra) also examined whether Section 10 CPC would apply to proceedings under the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act, and it was held that since Section 10 CPC refers to a Suit, it will not apply to the proceedings before the Estate Officer. The relevant observations are as follows:
"From the said provision it becomes clear that where it is clear from the pleadings of the previously instituted suit by the plaintiff before the Civil Court that the subject matter of controversy in issue is directly or substantially in issue in subsequently instituted suit, the subsequently instituted suit is required to be stayed. The object underlying Section 10 is to avoid two parallel trials on the same issues by two Courts and to avoid recording of conflicting findings on issue which are directly and substantially in issue in previously instituted suit. Language of Section 10 itself suggests that it is referrable to a suit instituted in Civil Court and it cannot apply to proceedings of other nature instituted under the statute, more particularly, when by. ouster clause enacted in special statute, the jurisdiction of the Civil Court is specifically ousted. Section 10 of C.P.C. can never have any application so as to stay the proceedings under the special statute before the special forum on the ground that one of the parties has already approached the Civil Court despite ouster clause ousting the jurisdiction of the Civil Court. To accept the contention of the respondentplaintiff in substance would amount to conferring jurisdiction upon the Civil Court despite its specific ouster by the special statute and it could also render meaningless and nugatory the ouster clause contained in the special statute, the object of which was to specifically oust the jurisdiction of the Civil Court and to confer the same on the competent authority." (emphasis supplied)
14. The aforesaid decisions clearly hold that for Section 10 CPC to apply, both the proceedings should be in suits between the same parties and it will not apply to proceedings initiated under any other statute. It has, therefore, to be held that Section 10 CPC will not apply to proceedings initiated under Section 4 of the Act.
15. Learned counsel for the petitioner, however, contended that in view of the decision of the Supreme Court in lal Chand (supra) and Brij Narain Singh (supra) the principles enshrined in Section 10 CPC should also be applied to proceedings before the Estate Officer even if it is held that proceedings before the Estate Officer are not proceedings in a suit.
16. This contention of learned counsel for the petitioner cannot be accepted as the Supreme Court has clearly held while dealing with Section 10 CPC that it shall not apply to proceedings initiated under different Acts..
17. There is, therefore, no infirmity in the orders passed by the Estate Officer in rejecting the applications filed by the petitioner under Section 10 CPC.
18. The writ petitions are, accordingly, dismissed.
