B.R.ARORA, J. - (1.) THIS revision petition is directed against the order dated May 4, 1992, passed by the Additional District Judge No. 2, Jodhpur, by which the learned Additional District Judge dismissed the application under Section 10 read with Section 151 C.P.C. and refused to stay the proceedings in the appeal filed by the appellant -petitioner.
(2.) PLAINTIFFS Haji Abdul Gani and others filed a suit for eviction and arrears of rent against the defendant on the ground of default in making the payment of the rent as well as on the ground of reasonable and bonafide necessity of the suit premises. The defendant contested the suit. In the written statement, the relationship of landlord and tenant as well as the reasonable and bonafide necessity of the plaintiff, were denied. It was averred in the written statement that the house in question belongs to the defendant, which was mortgaged with the plaintiffs for an amount of Rs. 5000/ - and actually the sale -deed was not executed. Though the house was mortgaged with the plaintiffs but as the plaintiffs did not agree to advance the loan and, therefore, the document of sale was written in the name of his son and alongwith this document of sale, another sale -deed was written by the defendant in favour of the plaintiffs that if the amount is paid within the period of seven years then he will be entitled for the redemption of the house in question. The defendant under coercion, pressure and on the assurance given by the plaintiffs, agreed to write the sale -deed, but actually no sale -deed was written on 1.12.1967, and it was merely a mortgage with the right to redemption. The suit filed by the plaintiffs was decreed by the trial Court and the appeal against that order is pending before the learned Additional District Judge No. 2, Jodhpur. The defendant -appellant, after the suit filed by the plaintiffs was decreed, filed a suit for redemption of the mortgage -property in the year 1991 in the Court of the Civil Judge, Jodhpur, which is pending before it. In the suit filed by the defendant, he has prayed for the redemption of the mortgaged property and for the cancellation of the alleged sale -deed dated December 1, 1967. That suit filed by the defendant -petitioner is pending in the Court of the learned Civil Judge, Jodhpur. An application was moved by the petitioner under Section 10 read with Section 151 C.P.C. on 22.7.92 before the learned Additional District Judge No. 2, Jodhpur, in whose Court the appeal filed by the petitioner against the decree of eviction passed against him, is pending. It was prayed in the application that he has filed a suit for the cancellation of the document as well as for the redemption of the mortgaged property and the matter in the present appeal and the matter in the suit filed by the petitioner -defendant are directly and substantially the same, and, the proceedings in the appeal may, therefore, be stayed so that the petitioner's case may not be prejudiced before the trial Court in the subsequent suit. The learned Additional District Judge, by his order dated September 4, 1992, dismissed the application filed by the defendant -petitioner by holding that the matter in both these suits is not directly or substantially the same. I have heard learned Counsel for the parties. It is, no doubt, true that while considering a documents whether it is a mortgage by a conditional sale or a sale with an option to re -purchase, much importance cannot be attached to the nomenclature of the document alone and the real intention has to be gathered from the document as well as from the attending circumstances and the documents is to be analysed in that sense. The nomenclature of the document, as given in the document which was executed by the petitioner in favour of the plaintiffs on 1.12.67 and the other document, i.e., the sale -deed, was executed by the plaintiff in favour of the petitioner on 7.12.67. Whether the document was a mortgage or conditional sale or a sale with a condition to re -purchase, that question was decided by this Court in S.B. Civil Appeal No. 103 of 1980 on September 15, 1980, wherein this Court observed that the document in question is not a mortgage -deed but is a sale -deed. Further more, this Court is not expected to express any opinion or to give any finding on this aspect because the matter is pending before the trial Court and the trial Court itself will consider this and the trial Court will be guided by the terms of the documents alone, As the nomenclature of the document is hardly conclusive. Section 10 of the Code of Civil Procedure provides that 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, where such suit is pending in the same or in any other Court in India, having jurisdiction to grant the relief claimed. The proceedings under Section 10 of the Code, thus can be stayed where the matter in issue in the suit is directly and substantially in issue in a previously instituted suit between the same parties and secondly the previously institutes suit is pending. The object of this Section is to prevent the Court of concurrent jurisdiction or the same Court from simulnatenous starting two parallel suits in respect of the same matter in issue. The question, therefore, requires consideration in the present case is : whether both the suits, i.e., the suit which has been decreed against the defendant and against which an appeal is pending and the suit filed by the defendant, which is pending before the learned Civil Judge, whether the matter in issue is directly and substantially the same? The suit filed by the defendant -petitioner is with respect to the cancellation of the document dated December 1, 1967, and for the redemption of the mortgaged property while the suit against which the appeal has been preferred and is pending and in which the application under Section 10 C.P.C. was filed and dismissed, is an appeal from a simple suit for ejectment and substantially the same in both the suit and, therefore, the learned lower Court was justified in rejecting the application filed by the defendant -petitioner. No material irregularity on illegality has been committed by the learned trial Court in dismissing the application filed by the petitioner.
(3.) IN the result, I do not find any merit in this revision petition and the same is hereby dismissed.;