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2002 DIGILAW 714 (MAD)

Karuneegar Sangam v. The Tahsildar & Others

2002-07-31

A.S.VENKATACHALA MOORTHY

body2002
Judgment :- The above revision petition has been filed against the order in I.A.529 of 2000 in O.S.629 of 1984 on the file of Principal District Munsif Court, Tiruvannamalai, dismissing the petition filed under Section 10 and 151 of Code of Civil Procedure rejecting the prayer to stay the trial of the suit O.S.629 of 1984 on its file till disposal of S.A.No.1078 of 2000 on the file of this Court. 2. Earlier, plaintiff filed a suit in O.S.160 of 1980 on the file of District Munsif Court, Tiruvannamalai praying the Court to grant a decree declaring its title to T.S.No.604/1B2 and for delivery of possession and the same was resisted by the defendants therein. The trial Court dismissed the suit and aggrieved by that, plaintiff filed an appeal in A.S.12 of 1999 on the file of Principal Sub Court, Tiruvannamalai. The appellate Court concurred with the findings of the trial Court and dismissed the appeal and against that petitioner/plaintiff has filed second appeal before this Court and the same is pending as S.A.1078 of 2000. 3. Pending second appeal, petitioner/plaintiff filed a second suit in O.S.629 of 1984 on the file of same Court i.e, Principal District Munsif Court, Tiruvannamalai against the respondents herein praying the Court to declare that the order of assignment dated 20.3.1978 passed by the first defendant viz., the Tahsildar, Tiruvannamalai, assigning T.S.No.604/2 in favour of 5th defendant therein is invalid in law and on facts. The claim of the petitioner/plaintiff in the said suit is that it has been in possession and enjoyment of the site in T.S.No.604/2 i.e, subject matter of the second suit and the said property is the only access to the house in T.S.No.604/1B2 since 1905 and that apart, they have also perfected title to the suit property by adverse possession. As already stated, the right claimed with reference to T.S.No.604/2 is the subject matter of the second appeal referred supra. 4. The petitioner filed I.A.529 of 2000 under Section 10 and 151 of Code of Civil Procedure praying the Court to stay the trial of the suit in O.S.629 of 1984 on the file of District Munsif Court, Tiruvannamalai till the disposal of S.A.1078 of 2000. 4. The petitioner filed I.A.529 of 2000 under Section 10 and 151 of Code of Civil Procedure praying the Court to stay the trial of the suit in O.S.629 of 1984 on the file of District Munsif Court, Tiruvannamalai till the disposal of S.A.1078 of 2000. In the affidavit filed in support of the said application it is contended that when the second appeal has not yet been disposed of, trial of the present suit cannot go on since both suits are between same parties and for the same subject matter. Further the result of the second appeal would be binding both the parties and the same will affect the outcome of the present suit in one way or the other. It is also contended that the suit in O.S.160 of 1980 is with reference to the main place in T.S.No.604/1B2 and the subsequent suit is with regard to T.S.No.604/2, which is the entrance and access to the main place in T.S.No.604/1B2 and thus, both the subject matter are inter-related. That apart, Government of Tamilnadu is an additional party in the present suit. 5. The said application was resisted by the respondents. The learned District Munsif, by an order dated 19.12.2001 dismissed the said application holding that the suit property in the second suit is entirely different from the earlier suit and that the result of appeal in S.A.1078 of 2000 would not affect the result of the present suit. Being aggrieved by the said order, petitioner/plaintiff has preferred the above revision petition. 6. Section 10 of Code of Civil Procedure lays down 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. The words 'matters in issue' may mean the subject matter in dispute. The principle underlying both Sections 10 and 11 is to achieve finality in litigation, to prevent multiplicity of proceedings as also to prevent conflict of decisions in respect of the same subject-matter involved in two different suits filed by and between the same parties. 7. The words 'matters in issue' may mean the subject matter in dispute. The principle underlying both Sections 10 and 11 is to achieve finality in litigation, to prevent multiplicity of proceedings as also to prevent conflict of decisions in respect of the same subject-matter involved in two different suits filed by and between the same parties. 7. In fact, in the case of J.H.Iron Mart v. Tulsiram, AIR 1953 BOMBAY 117, Justice Chagla, C.J. (as he then was) speaking for the Bench, pointed out, "Therefore, the principle underlying S.10 seems to be that the policy of the Legislature is opposed to two Courts with parallel jurisdiction proceeding simultaneously with two suits when there is a possibility of the two Courts coming to different conclusions and thereby resulting in conflict of decisions. If that policy underlying S.10 is kept in mind, then it would be easier to come to a decision with regard to different cases that arise for decision." It is now fairly settled that Section 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the Legislature in S.10 that the identity required is a substantial identity. To put it differently, it is not necessary for applicability of the section that the subject matter and cause of action of the two suits should be identical. But what is essential is that there must be substantial identity of the matter in dispute and parties in the earlier and later suits. It is not sufficient that there are some issues common in both the suits. So also, it would not make any difference if a person who is not a party in the first suit is impleaded as party in the second suit, so long as the joinder of such party on such allegation raises any separate and substantial issue so as to make the section inapplicable. Of course one test of applicability of Section 10 is final decision reached in the previous suit and such decision will operate as res judicata in the second suit. 8. Of course one test of applicability of Section 10 is final decision reached in the previous suit and such decision will operate as res judicata in the second suit. 8. Coming to the present case, the petitioner's claim is that they are entitled for T.S.No.604/1B2, which is subject matter of the first suit and to reach that property, they have been using T.S.No.604/2 since 1905. The first claim is subject matter of the first suit and second claim is subject matter of the second suit. As far as the first claim i.e., T.S.No.604/1B2, is concerned, it has lost in two courts and second appeal is pending. In case the second appeal is dismissed, then nothing survives for consideration in the second suit, pertaining to their claim that they have been using T.S.No.604/2 to reach the other property. However, even if they succeed in second appeal, still they have to establish their right as claimed for T.S.No.604/2. At best, it can be said that there is some relation between suits, but certainly it cannot be said that the matter in issue in both the suits is directly and substantially the same. To put it differently, even if the petitioner succeeds in second appeal, it may fail in the second suit. It is not as if the decision in the second appeal will have direct bearing and that apart, it is not the case of the petitioner that the only access to T.S.No.604/1B2 is through T.S.No.604/2. In this view of the matter, the order of the trial Court is just, legal and proper. 9. There are no merits in the revision petition and the same is dismissed. No costs. Consequently, C.M.P.No.2969 of 2002 is also dismissed. This Court places on record the valuable assistance rendered by Mr.A.Muthukumar, Amicus Curiae.