In CR-4254-2022-PUNJ HC- Sec.10 CPC is applicable to suits only; Rent Controller committed no error in declining such application moved in eviction petition pending before it as such petition is not suit: P&H HC
Justice Harkesh Manuja [10-10-2022]

Read Order: Kid Care Child Hospital and Another v. Sudha Bansal 

Monika Rahar

Chandigarh, October 11, 2022:  While dealing with a revision petition assailing the Trial Court order dismissing petitioners’ Section 10 CPC application filed in an eviction petition with a prayer for stay of further proceedings till the decision of civil suit for preemption filed in respect of same property, the High Court of Punjab and Haryana has held that Section 10 CPC can only be invoked in case, the two separate proceedings in which the matter in issue is said to be directly and substantially be same, must arise out of two separate civil suits.

“... provision [of Section 10 CPC] is applicable to suits only and an application can be filed in a pending suit for staying the proceedings in case the matter in issue involved therein is directly and substantially an issue in a previously instituted suit between the same parties”, opined Justice Harkesh Manuja while also adding,“In the present case, the petitioners have moved an application under Section 10 CPC, in an eviction petition pending before the learned Rent Controller, filed under the Haryana Urban (Control of Rent and Eviction) Act, 1973, and the same not being a suit, the learned Rent Controller committed no error of law while declining the same.”

Brief facts of the matter are that in 1983, a property consisting of two floors was rented out in favour of the second petitioner by the original owner (Sh.Sadhu Ram Mittal). After the death of Sh. Sadhu Ram Mittal, his legal heirs sold the property in question to the respondent vide registered sale deed in 2019. 

In July 2021, the second petitioner filed a suit for preemption against respondent as regards sale deed of 2019, claiming himself to be owner in occupation of the suit property. Simultaneously, the respondent filed an eviction petition against the petitioners.  

In the eviction petition, petitioners moved an application under Section 10 CPC with a prayer for stay of further proceedings till the decision of civil suit for preemption filed at their instance. The Trial Court dismissed the said application. Hence, the High Court was approached. 

The petitioners’ counsel contended that once the ownership of the property was being claimed at their instance in the suit for preemption, pending the said suit, the Rent Controller should have allowed the application filed under Section 10 CPC in the later ejection petition filed by respondent. The counsel further added that as the matter in issue involved in both the proceedings was directly and substantially the same, the Rent Controller was under an obligation to stay its hand till the final adjudication of the previously instituted suit between the same parties. 

After hearing the parties, the Court opined that on a bare reading of Section 10 CPC, it can be traced out that the same can only be invoked in case the two separate proceedings in which the matter in issue is said to be directly and substantially be same, must arise out of two separate civil suits. 

“Even the heading of the provision makes it more than apparent that the said provision is applicable to suits only and an application can be filed in a pending suit for staying the proceedings in case the matter in issue involved therein is directly and substantially an issue in a previously instituted suit between the same parties”, Justice Manuja opined.

Adverting to the present case, the Court observed that here, the petitioners moved an application under Section 10 CPC, in an eviction petition pending before the Rent Controller, filed under the Haryana Urban (Control of Rent and Eviction) Act, 1973, and the same not being a suit, the Rent Controller committed no error of law while declining the same.  

Also, the Bench added that the entire procedure as laid down under the provisions of Code of Civil Procedure cannot be made applicable to the eviction proceedings pending under the Rent Act which in itself is a special Code. Besides vesting of power to summon and to enforce attendance of witnesses as well as execution of orders with the authorities under the Rent Act as per Sections 16 and 18 of the Act of 1973, “the rest of the procedure has to be derived by the authorities in consonance with the Rules of natural justice”, the Court held. 

Also, it was observed by the Court that the issue involved in the civil suit filed at the instance of the second petitioner against respondent, related to ownership/vesting of the property in question which even otherwise, did not fall within the domain of the Rent Controller which was empowered only to adjudicate rights arising out of landlord-tenant relationship and not the title inter-se. 

On the other hand, the rent proceedings cannot be ordered to be stayed as the Rent Controller was having no jurisdiction to grant the relief of ownership/ title as claimed by the second petitioner in the previously instituted suit. 

“Therefore, once the mandatory conditions as envisaged under Section 10 CPC to the effect that the Court in which subsequent proceeding/ suit was initiated must be having jurisdiction to grant the relief claimed in the previous suit, are not made out in the facts and circumstances of the present case”, the Court held. 

Accordingly, the present revision petition was dismissed.