S.C. Sharma, J.The petitioner before this court has filed this present petition being aggrieved by the order dated 05-09-2014 passed by the learned XIII Additional District Judge, Indore in Civil Suit No. 20-A/2013.

2. The facts of the case reveal that the present petitioners, who are the plaintiffs have filed a civil suit for eviction of the respondents on 22-11-2013. Inspite of notice, no written statement has been filed by the tenants. However, an application has been filed u/s. 10 of C.P.C. for stay of the proceedings and the same has been allowed by the learned Additional District Judge.

3. Learned counsel for the petitioners/plaintiffs has vehemently argued before this court that the respondents have earlier filed a civil suit on 08-07-1991 for the specific performance of the contract in respect of the same property and the same was dismissed on 30-11-2006. It is also been admitted that first appeal is pending before this court against the judgment and decree dated 30-11-2006, by both the parties.

4. Learned Additional District Judge has passed the impugned order holding that two first appeals are pending in respect of the same suit property and has stayed the trial of the eviction suit. Learned counsel for the petitioners has placed reliance upon a judgment delivered by this court in the case of Trivenidi Vs. Vijay Mohan Bose, , Prakash Chand Soni Vs. Anita Jain, , Rajesh Singh and Others Vs. Manoj Kumar, and the judgment delivered in the case of Aspi Jal and another Vs. Khushroo Rustom Dadyburjor reported in 2013 (I) M.P.A.C.J. 174.

5. On the other hand, learned counsel appearing for the tenants/respondents has argued before this court that in light of the tenancy, the impugned order has rightly been passed by the trial court and the question of interference does not arise in light of the judgment delivered by the apex court in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, .

6. He has placed reliance upon a judgment delivered by this court in the case of Dadolwa and Another Vs. Ramakant and Others, . He has also placed reliance upon a judgment delivered in the case of Aspi Jal and another Vs. Khushroo Rustom Dadyburjor (supra).

7. Heard learned counsel for the parties and perused the record.

8. In the present case, it is an admitted fact that in the year 1991, respondents have filed a civil suit for specific performance of the contract in respect of the same suit property. The Civil suit filed by the respondents has been dismissed in the year 2006 and it is true that the First Appeal is pending before this court. It is pertinent to note that the present petitioners, who are plaintiffs and who are the Landlord have filed a suit for eviction and instead of filing written statement, an application has been preferred u/s. 10 of the C.P.C. Section 10 of the Code of Civil Procedure reads as under:-

"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 1[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***] and having like jurisdiction, or before 4[the Supreme Court]."

9. The aforesaid statutory provisions of law do provide for stay of suit in case the matter in issue is directly and substantially in issue in a previously instituted suit, between the same parties. It is noteworthy to mention that earlier the suit was in respect of specific performance of contract and subsequently suit filed by the plaintiff/petitioner is in respect of eviction. This court in the case of Trivenidevi Vs. Vijay Mohan Bose (supra) in paragraphs 11 has held as under:-

"11. In the previous suit which is a suit for the specific performance of the alleged contract of reconveyance, the material issue would be about the existence of that contract and its enforceability. The question in what capacity the plaintiff in that suit i.e., the non-applicant herein is in possession of the suit premises is neither of any relevance or significance. Further, in that suit, the contract of tenancy is not directly and substantially in issue as is in the present suit. All what has been said in that suit is that the interest which was to be paid as per the terms of the alleged contract was to be paid in the disguise of rent."

10. This court almost in similar circumstances where the previous of suit was for specific performance for alleged contract and subsequent suit was for eviction has held that trial of the subsequent suit cannot be stayed.

11. This court in the case of Prakash Chand Soni (supra) has again dealt with a similar issue. In the aforesaid case, one suit was in respect of specific performance of contract and other suit was in respect of ejectment under the Madhya Pradesh Accommodation Control Act, 1961 and this court has held eviction suit cannot be stayed. Paragraphs 8 and 9 of the aforesaid judgment reads as under:-

"8. In the present case the earlier suit is for eviction and the latter suit is for specific performance of contract. In the earlier suit the matter directly and substantially in issue is whether the plaintiff is landlord of the defendant and whether one or more of the grounds for eviction under Section 12(1) of the M.P. Accommodation Control Act is established. The previous owner was admittedly the landlord of the defendant and she has executed registered sale-deed in favour of the plaintiff and on that basis she can claim to be the landlord of the suit accommodation. In that case it is unnecessary to decide the question whether there was prior agreement of sale by the previous owner in favour of the defendant. That question would be "material and essential" in the subsequent suit for specific performance of contract where it would be decided whether the alleged agreement of sale is true and genuine, whether the vendee was ready and willing to perform his part of the contract and whether the subsequent transferee had notice of the earlier agreement and if all the ingredients necessary in a suit for specific performance of contract are found established a decree would follow and then a sale-deed would be executed and registered either by the parties or on their failure by the Court and thereafter the vendee would acquire title to the property in dispute. It is thus clearly discernible that there is no substantial identity of the subject matter and field of controversy between the parties in the two suits. The matter directly and substantially in issue in the eviction suit is not the same in the suit for specific performance of contract. The issue relating to the agreement of sale and its enforceability against the vendor and subsequent transferee is not "necessary" in the eviction suit. That is not "material and essential" for the decision of that suit. That suit can be decided without determining this question. Therefore, it is manifest that the matter in both the suits is not directly and substantially the same. The eviction suit cannot be stayed until the decision of the suit for specific performance of the contract. If the plaintiff in his suit for specific performance ultimately succeeds he can get back possession of the house on the strength of his title.

9. In Trivenidevi Naraindas Vs. Vijay Mohan Bose, , the stay of the suit for eviction until the decision of the suit for specific performance of contract was declined on the ground that there is no substantial identity between the two suits. The matter in issue in both the suits was not directly and substantially the same. This decision was followed in Kalyan Singh v. Hafiz Abdul, 1979 MPWN Note 54. The same view was taken in Harikishan v. Rishikumar, 1982 MPWN Note 387 , Lachaman Nepak and Others Vs. Badankayalu Syama Babu Subudhi and Another, and Dr. N.P. Tripathi Vs. Smt. Dayamanti Devi and Another, . In the case of S.C. Barat v. J. Jacob, 1977 JLJ-SN 82, cited on behalf of the petitioner it was found as a fact that the main issues in both the suits were common and, therefore, the stay of the previous eviction suit under Section 151, CPC was granted. It has been demonstrated earlier that in the present case the "essential and material" issues are not common and the matter in one suit is not directly and substantially the same in the other. Therefore, the earlier eviction suit cannot be stayed."

12. The apex court in the case of Aspi Jal and another Vs. Khushroo Rustom Dadyburjor (supra), judgment over which reliance has been placed by both the parties in paragraph 9 to 13 held as under:-

"9. Section 10 of the Code which is relevant for the purpose reads 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.

Explanation.- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.

10. From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e., No court shall proceed with the trial of any suit makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, in which it has been held as follows:

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. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are the matter in issue is directly and substantially in issue in the previous instituted suit. The words directly and substantially in issue are used in contradistinction to the words incidentally or collaterally in issue. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.

11. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether the matter in issue is also directly and substantially in issue in previously instituted suits. The key words in Section 10 are the matter in issue is directly and substantially in issue in the previously instituted suit. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.

12. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what the matter in issue exactly means As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case. Reference in this connection can be made to a decision of this Court in Dunlop India Limited Vs. A.A. Rahna and Another, in which it has been held as follows:

"35. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June 1998, in the second set of petitions, the period of non-occupation commenced from September 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the appellate authority because till 2-8-1999, the premises were found kept open and alive for operation. The appellate authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K. Agarwal on 1-10-2001 that the Company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1-10-2001; that no activity had been done in the premises with effect from 1-10-2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the appellate authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause."

(Underlining ours)

13. In view of what we have observed earlier, the orders passed by the trial court as affirmed by the High Court are vulnerable and therefore, cannot be allowed to stand."

13. The aforesaid case was relating to eviction of the tenant from the tenanted premises on the ground of non-user for several years and second suit was also filed again for non-user for several years and the third suit was again filed for eviction of the defendants on the ground of non-user for a continuous period for not less than six years. Meaning thereby, issue in hand was not at all the subject matter of controversy in the judgment delivered by the apex court.

14. Learned counsel for the respondent has placed reliance upon a judgment delivered in the case of Dadolwa and another Vs. Ramakant and others (supra). In the aforesaid case, the matter in the earlier suit was whether the plaintiff of the suit was the owner of the property or not and second suit was also in respect of the sale deed in respect of the same property, whereas no such controversy is involved in the present case.

15. This court is therefore is of the considered opinion that the impugned order passed by the learned Additional District Judge suffers from patent illegality and, therefore, in light of the judgment delivered by the apex court in the case of Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, , this court do have a jurisdiction to entertain a writ petition, in case patent illegality has been committed by the trial court.

16. Resultantly, the writ petition is allowed and the impugned order passed by the XIII Additional District Judge, Indore in Civil Suit No. 20-A/2013 dated 05-09-2014 is set aside. The trial court is directed to decide the suit, as expeditiously as possible, preferably within a period of six months from the date of receipt of certified copy of this order.

17. No order as to costs.