Ashoke Kumar Dasadhikari, J@mdashThe order impugned passed under section 10 of \\the C.P. Code dated 31st March, 2014 by learned Civil Judge (Junior Division), 1st Court, Alipore rejecting the application for stay of 2012 suit filed by the plaintiff/petitioner in Title Suit No. 1615 of 2011 and defendant opposite party in Ejectment Suit 78 of 2012 is under challenge in this revisional application. Learned counsel appearing for the petitioner submits that petitioner filed Title Suit for declaration that the defendant has no right to disturb his possession, which was decreed in his favour. Subsequently plaintiff/petitioner being landlord filed Ejectment Suit being No. 78 of 2012 and started disturbing tenant/petitioner and compelled him to file a Title Suit No. 1615 of 2011 with a prayer for declaration that the plaintiff/petitioner being a monthly tenant of the suit premises, defendants have no right to disturb and/or interfere with the possession of the plaintiff/petitioner in the suit premises otherwise then due process of law and by permanent alimony restraining the defendant No. 1 from disturbing and/or interfering with the possession, user and enjoyment of the suit premises by the plaintiff in any manner otherwise then due process of law.
2. Learned counsel submits that the plaintiff in eviction suit claimed to be the owner of a portion of the property and he has prayed for a decree for eviction against the defendant from the suit premises and a decree for recovery of khas possession of the suit property for evicting defendant from the suit property and a decree for recovery of mesne profit @ Rs. 200/- per diem on and from 1st October, 2012 from the defendant under the provision of under Order 20 Rule 12 of C.P. Code.
3. Learned counsel submits that the tenant/petitioner is the plaintiff in 2011 suit, which is earlier suit. The common issue involved in both the suits is whether the petitioner is a tenant under the defendant. Therefore, until and unless that issue is decided, subsequent suit for eviction cannot proceed with.
4. Learned counsel submits that the issues in both the suits would be more or less is same. He also submits that petitioner who is a co-tenant along with his brothers are all not parties in the suit instituted by the landlord. He submits that the suit filed by him being the prior suit and since more or less the same issue involved in both the suits, subsequent eviction suit filed by the landlord/opposite party should be stayed.
5. In support of his submissions learned counsel for the petitioner cited two decisions one is reported in
6. Mr. Ghosal, learned counsel appearing for the landlord/plaintiff submits that it is admitted by the landlord/opposite party that the petitioner/tenant is a statutory tenant under him. He submits this admission itself is decisive as regards the relationship of landlord and tenant between the plaintiff and the tenant/petitioner. However, he submits that both the suits are filed for different cause of action and the issues in one suit are directly and substantially different with the other.
7. According to Mr. Ghosal cause of action of both suits are different. He submits application of section 10 of C.P. Code would depend only on one question whether the decision in the first suit would be resjudicated in the subsequent suit or not and if the answer is positive then the second suit should be stayed.
8. Mr. Ghosal submits that today it is well settled that even if one issue is common in both the suits that cannot be ground for allowing section 10 of C.P. Code.
9. In support of his submissions Mr. Ghosal, cited two decisions one is reported
10. I have considered the submissions advanced by the learned counsel appearing for the parties. It is on record that two suits have arising (sic arised) from two different cause of actions. The first suit filed by the tenant/petitioner for declaration of statutory rights in respect of the suit premises and for declaration that the plaintiff cannot disturb his possessions without due process of law. In the second suit the landlord/plaintiff has prayed for eviction of the tenant. Plaintiff/landlord also accepted the petitioner as his tenant. It appears that both the suits are different and the issues would not be identical. The test of section 10 of C.P. Code is well settled, unless the decision of the first suit operates as res judicata in the subsequent suit there cannot be stay of second suit. It cannot be said that the matter in issue is the first suit is directly and substantially the same. Therefore the learned Third Judge have rightly rejected the application filed by the petitioner/tenant.
11. In my view there is no illegality and/or material irregularity in the order passed by the Learned Civil Judge, (Jr. Division), 1st Court, Alipore since the learned Judge correctly followed the principles applicable. Therefore, I do not find any merit in this revisional application and this revisional application is rejected without any order as to costs.
