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J.K. SAMUEL versus RAJ KUMAR MICHAEL AND ANOTHER

High Court of Judicature at Allahabad

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J.K. Samuel v. Raj Kumar Michael And Another - SECOND APPEAL No. - 943 of 1996 [2007] RD-AH 15542 (14 September 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No.27

Second Appeal No. 943 of 1996

J.K. Samuel

Vs.

Raj Kumar Michael & Another

~~~~~~

Hon. Dilip Gupta, J.

The defendant has filed this Second Appeal for setting aside the judgment and decree passed by the learned VIII Additional District Judge, Ghaziabad by which the Civil Appeal that had been filed by the defendant was dismissed.

The Original Suit had been filed by the plaintiffs against the defendant for recovery of damages, electricity charges and water charges and for ejectment from the premises in question. It was stated that the defendant had been appointed as an Office Assistant in the Ingraham Institute situate at Hapur Road, Ghaziabad by means of appointment letter dated 8th June, 1968 and as he was to be provided with a rent free accommodation, the premises in question was provided to the plaintiff. His services were, however, terminated by the order dated 7th November, 1975 and he was asked to vacate the premises provided to him. This termination order was challenged by the plaintiff by filing Original Suit No. 1098 of 1975. The said suit was dismissed by the judgment and decree dated 18th April, 1978.

The defendant filed a written statement stating therein that the judgment and decree dated 18th April, 1978 was challenged by him by filing Civil Appeal which was pending in the Court of District Judge, Ghaziabad and in such circumstances the relief sought for ejectment was premature. It was further contended that the provisions of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 was applicable to the premises in dispute and, therefore, the Civil Court has no jurisdiction to entertain the suit.

The Trial Court found that the suit was maintainable in the Civil Court; that the defendant had no right to stay in the premises as his services had been terminated and, therefore, decreed the suit.

The Lower Appellate Court framed two points for consideration namely whether the proceedings should have been stayed under Section 10 of the Code of Civil Procedure and whether the suit could be instituted by the plaintiffs.

In respect of Point No.1, the Lower Appellate Court observed that services of the defendant had been terminated by the order dated 7th November, 1975 and Original Suit No.1098 of 1975 had been dismissed by the Trial Court by the judgment and decree dated 18th April, 1978. The Civil Appeal filed by him had also been dismissed but the Second Appeal was pending in the High Court. The Lower Appellate Court also found that the premises had been given to the defendant in accordance with the terms and conditions of service. The Trial Court had framed an issue as to whether the suit was liable to be stayed in view of the provisions of Section 10 of the Code of Civil Procedure. This issue was tried as a preliminary issue and the Trial Court gave its finding against the defendant against which the defendant filed a revision which was also dismissed by the learned IV Additional District Judge on 16th July, 1981. The Trial Court again rejected this plea of the defendant by the order dated 14th January, 1981 against which the defendant filed a revision which was also dismissed on 9th April, 1993. This issue was again raised by the defendant before the Lower Appellate Court. The Lower Appellate Court found that the suit that was filed by the defendant was in respect of termination of his service while the Institute had filed the suit for recovery of damages, electricity charges, water charges and for ejectment. Thus, there was no justification for staying the proceedings in the suit filed by the Institute. The second point was also decided against the defendant. It was found that Raj Kumar Michael had the authority to file the suit.

Learned counsel for the appellant submitted that as the defendant had filed the Second Appeal in this Court for setting aside the judgment and decree rendered in the suit filed by him for setting aside the termination order, the Courts below committed an illegality in not staying the proceedings of the suit filed by the Institute out of which this Second Appeal arises. This plea was repelled by the Courts below as the Original Suit No.1098 of 1975 that had been filed by J.K. Samual was for setting aside the termination order while the Original Suit No.224 of 1978 that had been filed by the Institute was for recovery of damages, electricity charges, water charges and for ejectment from the premises in question.

Section 10 of the Code of Civil Procedure is 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]."

It is, therefore, clear that it is only when the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties that the Court shall not proceed with the trial of the suit. In the instant case the matter in issue in Original Suit No.224 of 1978 is not directly or substantially in issue in the Suit No.1098 of 1975. Thus, there is no infirmity in the findings recorded by the Courts below.

There is no merit in this Second Appeal. It is, accordingly, dismissed at the admission stage as no substantial question of law arises for consideration.

Date: 14.9.2007

GS


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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