ORDER

This miscellaneous petition has been preferred by the petitioner/defendant challenging the order dtd. 27.07.2022 passed by 17th Civil Judge Junior Division, Bhopal in RCSA No.473/2015 whereby trial Court has dismissed petitioner/defendant's application under Section 10 CPC.

2. Learned counsel for the petitioner/defendant submits that the petitioner/defendant was inducted as tenant in a shop admeasuring 15x12 sq. ft. owned by the respondents and on the basis of agreement of sale dtd.

25.03.2005, a civil suit for specific performance bearing RCSA No. 530/2012 was filed on 02.04.2012 and after 3 years of filing of the suit for specific performance, the respondents 1-5 have filed a civil suit for eviction and arrears of rent on the grounds available under Section 12(1) of the M.P. Accommodation Control Act, 1961 (in short "the Act") bearing RCSA No.

473/2015. He submits that if the previously instituted suit for specific performance is decreed, it would come in the way of suit for eviction and arrears of rent, therefore, trial Court has commited illegality in dismising the application under Section 10 of the CPC. With the aforesaid submissions, he prays for allowing the miscellaneous petition.

3. Heard learned counsel for the petitioner/defendant and perused the record.

4. While passing the impugned order dtd. 27.07.2022, trial Court has considered the decision of Hon'ble Supreme Court in the case of National Institute of Mental Health and Neuro Sciences vs. C. Parameshwara AIR 2005 SC 242. This decision has been followed in the case of Aspi Jal and Another vs. Khushroo Rustom Dadyburjor (2013) 4 SCC 333, relevant para 12 of which is as under:-

"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 a 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."

5. As in the suit for specific performance and in the suit for eviction, entire subject matter is not common, therefore, provisions of Section 10 CPC are not attracted to the case in hand.

6. In view of the aforesaid and in my considered opinion, trial Court does not appear to have committed any illegality in passing the impugned order.

7. Resultantly, this miscellaneous petition fails and is hereby dismissed. 8. Pending application(s), if any, shall stand disposed off. (DWARKA DHISH BANSAL) JUDGE KPS