- (1.) THIS petition for writ is preferred to question correctness of the order dated 9.4.2013 passed by learned Additional Sessions Judge, Parbatsar in Original Civil Case No.13/2009, Sushila Devi v. Gopal Lal Gaur, in the court of Civil Judge (Senior Division), Parbatsar, deciding the issue No.6.
(2.) FACTUAL matrix necessary to be noticed is that the petitioner preferred a suit (Original Suit No.45/2006) for injunction and declaration that he is permanent tenant of the shop, thus, landlord Smt. Sushila Devi be restrained from dispossessing him from the premises concerned. During pendency of the suit aforesaid, Smt. Sushila Devi preferred an another suit for eviction of the petitioner (defendant No.1) from the rented premises with assertion that she rented out the shop to Shri Gopal Lal who further sublet the same to the present petitioner. The suit for eviction is based on the grounds of bonafide necessity of the landlord and material alteration with rented premises. In the suit preferred by Smt. Sushila Devi the issue No.6 was framed in the terms that "whether this suit is barred by provisions of Section 10 of the Code of Civil Procedure due to pendency of the earlier suit No.45/2006 before the court of Civil Judge (Senior Division), Parbatsar?" Learned trial court decided the issue No.6 first and arrived at the conclusion that in the instant matter the question involved is with regard to bonafide necessity of the plaintiff and the material alteration with the rented premises, whereas the earlier suit (45/2006) pertains to the issue about permanent tenancy of the plaintiff in that case, thus, Section 10 Code of Civil Procedure does not come into picture.
(3.) IT is submitted by counsel for the petitioner that the court below failed to appreciate that there is identity of the issue in both the suits and whole of subject matter in both the proceedings is identical, thus, the second suit is restricted by application of Section 10, Code of Civil Procedure.;