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2003 DIGILAW 624 (KER)

V. Thrivenkidam v. R. Veeresh Kumar

2003-10-01

P.R.RAMAN

body2003
Judgment :- The first defendant in O.S. 205/1990 on the file of the Prl. Sub Court, Alappuzha is the petitioner in all these revision petitions. 2. O.S. 205/1990 was filed by the plaintiff for partition claiming 1/9 share of plaint schedule items A to C. The allegation is that it is a joint family property and the plaintiff is entitled to get the share. The third defendant in the said suit who is the younger brother of the plaintiff filed a separate suit as O.S. 207/1990 claiming that he is also entitled to 1/9 share in the property. I.A. 589/1998 was filed by the plaintiff in O.S. 205/1990 under Sec. 151 of the Code of Civil Procedure to consolidate O.S. 207/1990 along with O.S. 205/1990. I.A. 590 of 1998 was filed by the plaintiff in O.S. 207/1990 claiming the same relief. The first defendant in these suits filed I.A. 1309/1998 in O.S. 205/1990 for stay of that suit till the disposal of O.S. 205/1990 under Sec. 10 of the C.P.C. All these three applications were disposed of by a common order. The court below the applications for consolidation filed by the plaintiffs in the respective suits and dismissed the application filed by the first defendant seeking stay of O.S. 207/1990. Aggrieved thereby, these three revision petitions are filed by the first defendant. The questions that arise for consideration are: (1) Whether the civil revision petitions are maintainable under Sec. 115 of the Code of Civil procedure? (2) Assuming it is maintainable, whether the order passed buy the court below is liable to be revised in exercise of the powers vested in this court under Sec. 115 of the C.P.C. and whether there is any illegality committed by the court below in dismissing the application filed by the first defendant for stay of O.S. 207/1990? 3. Even though the applications for consolidation and the application for stay were, filed at the interim stage of the suit, that has got the nature of a final disposal in that proceeding in so far as the matter becomes final on the question as to whether the latter suit should be stayed or not. Hence I find that these revision petitions cannot be rejected on the ground of non-maintainability. 4. Now the question arises as to whether any illegality is committed by the court below in refusing to stay O.S. 207/1990? Hence I find that these revision petitions cannot be rejected on the ground of non-maintainability. 4. Now the question arises as to whether any illegality is committed by the court below in refusing to stay O.S. 207/1990? Before adverting to the rival submissions made by the learned counsel for the petitioner and respondents, it is necessary to extract the provisions contained in Sec. 10 of the Code of Civil Procedure which 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.” 5. The court below found in its common order which is impugned in these revision petitions that the plaintiffs in both the suits are litigating under the same title and the subject matter involved in both the cases are substantially identical. It was observed that since these suits are for partition. It cannot be said that the subsequently instituted suit will be res judicata in the event of granting a decree in the prior case. According to the court below, the latter suit is a more comprehensive one than the earlier one and the 9th defendant in the latter suit has also preferred a counter claim which is an issue arising for consideration in the latter suit, which however is absent in the earlier suit. 6. Being a partition suit, though the defendants are also entitled to claim allotment of separate share by paying court fee, there is no law which compels them to adopt that course rather they are also entitled to claim their share of the property by bringing forth a separate suit. 6. Being a partition suit, though the defendants are also entitled to claim allotment of separate share by paying court fee, there is no law which compels them to adopt that course rather they are also entitled to claim their share of the property by bringing forth a separate suit. But in this case, the court below allowed the prayer of the plaintiffs to have a joint trial of these two cases instead of staying O.S. 207 of 1990 more so for the reason that these cases are very old and pending from 1989 onwards and that no prejudice will be caused for any of the parties for having a joint trial in the above case. It was also found that in the present case since common evidence is possible, it will be convenient to have both the case disposed of by a common judgment and O.S. 205 of 1990 be treated as a leading case. 7. The learned counsel for the petitioner submitted that in view of the fact the latter suit is one for partition by none other than the third defendant in the earlier suit who is the brother of the plaintiff in that suit and since the question involved is regarding the partibility of the property, the latter suit is liable to be stayed under Sec. 10 of the Code of Civil Procedure. According to the learned counsel for the respondent, it is settled that in the earlier suit the defendant did not seek for separate allotment of the share nor has he payed the court fee. On the other hand, the third defendant in the earlier suit has preferred a separate suit as O.S. 207/1990 in his right to get partition of the property which is not prohibited by law. It is also his case that the plaint in both the cases are not identical in the sense that the latter suit is a more comprehensive one and the counter claim raised by the 9th defendant also arises for consideration. According to him, the decision rendered in O.S. 205/1990 will not be the final disposal of the contentions raised in the latter suit. According to him, the decision rendered in O.S. 205/1990 will not be the final disposal of the contentions raised in the latter suit. It is also his case that in so far as there is no claim for separate allotment of the share by the defendant any finding entered in the first suit will not operate as a bar nor can the principle of res judicata be applied. According to him the prime question that is to be looked into by the court while considering the stay application is whether the decision will operate as res judicata in the latter suit. In this connection, he placed reliance on the decision of the various High Courts on the point. In Fulchand Motilal & Another v. Manhar Lall Jetha Lall Mehta (AIR 1973 Patna 196) the Patna High Court, while considering a similar question arising under Sec. 10 held as follows: “For determining whether or not the matter directly and substantially in issue in former as well as subsequent suits is the same, the test to be applied is whether adjudication of the matter directly and substantially arising in the former suit will decide not merely that suit but will also operate as res judicata in subsequent suit between the same parties, and not whether the cause of action or reliefs claimed and/or one of the issues arising in both the suits are the same.” 8. Life Pharmaceuticals (Private) Ltd. v. Bengal Medical Hall (Air 1971 Calcutta 245) was also a case arising under Sec. 10 of the Code of Civil Procedure wherein it was held as follows: “The test in an application under the section is whether the matter in the later suit will be res judicata if the earlier suit is taken to have been decreed as prayed in the plaint of that later suit. It will be immaterial if no written statement has been made in that earlier suit. Thus when invalidity of an agreement is in issue in the later suit and on the validity of that agreement if that invalidity has not been pleaded in that earlier suit it will be hit by constructive res judicata. As such the later suit can be stayed under the Section.” 9. In M/s. Sohal Engineering Works, Bhandup, Bombay v. Rustam Jehangir Vakil Mills Co. ltd., Ahmedabad (AIR 1981 Guj. As such the later suit can be stayed under the Section.” 9. In M/s. Sohal Engineering Works, Bhandup, Bombay v. Rustam Jehangir Vakil Mills Co. ltd., Ahmedabad (AIR 1981 Guj. 110) after referring to the words used in Sec. 10, more particularly the key words “the matter in issue is directly and substantially in issue” the Gujarat High Court held thus: “The words “directly and substantially in issue” are used in contra-distinction to the words “incidentally or collaterally in issue”. That means that Sec. 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 and not merely one of the many issues which arise for determination in the two suits. That, however, does not mean that all the issues must be identical, that is, the subject matter need not be the same in every particular. To that extent, Sec. 10 differs from Sec. 11 which engrafts the doctrine of res judicata. Under Sec. 11 even if one of the two issues is common to both the suits, the decision on that issue would operate as res judicata in any suit subsequently decided between the same parties so far as that issue is concerned. That is why the working test is that if by the decision in the previously instituted suit the subsequent suit would fail as a whole on the principle of res judicata, the subsequent suit must be stayed. S.10 is mandatory in character. It is however, a question of fact to be gathered from the pleadings of the two suits as to whether the matter in issue in the subsequently instituted suit is directly and substantially in issue in the previously instituted suit.” 10. It was also held in the same decision that under Sec. 151 of the Code of Civil Procedure when there are two suits before the same parties and the question arising are also common, the court has got an inherent power to direct to try the two suits together. Reference was also made on the decision in Bhopo Fakirbhai (minor) v. Bai Mani (AIR 1961 Guj. 92) Harinarain Choudhari v. Ram Asish Singh (AIR 1957 Pat. 124), etc. 11. Morusu Lakshmamma v. Bella Magappa (1982 NOC 269) was a decision rendered by the Andhrapradesh High Court. Reference was also made on the decision in Bhopo Fakirbhai (minor) v. Bai Mani (AIR 1961 Guj. 92) Harinarain Choudhari v. Ram Asish Singh (AIR 1957 Pat. 124), etc. 11. Morusu Lakshmamma v. Bella Magappa (1982 NOC 269) was a decision rendered by the Andhrapradesh High Court. That was a case where a suit was filed for partition and separate possession of 1/3 share by the plaintiff. A preliminary decree was granted allotting 1/3 share to the plaintiff. But 2/3 share was not allowed to the defendant. There was no application for final decree. Subsequently, the defendant instituted a suit for partition and allotment of 2/3 share. The question arose for consideration was whether the suit filed by the defendant was maintainable. It was held that the earlier decision cannot operate as res judicata against the latter suit preferred by the earlier suit will not be a bar to the maintainability of the subsequent suit by him for partition where relief was given only to the plaintiff and where the rights of the defendants were only declared and no executable decree was passed in their favour. 12. The above decision lays down the proposition of law that in the absence of any executable decree in a suit for partition, a second suit is maintainable. As far as the present case is concerned, there is no dispute that the defendant did not even seek for allotment of his separate share and therefore even if the suit O.S. 205/1990 is decreed as prayed for there will not be any executable decree in favour of the defendants. Further, the plaintiff in O.S. 207/1990 did not wait till the result of the first suit was known to him rather he has simultaneously instituted the second suit and applied for joint trial. In the facts and circumstances and in the light of what has been stated above and in view of the specific claim made, it cannot be said that the latter decision will operate as res judicata in the later suit. If that is the principle to be applied in the matter of stay of a suit under Sec.10 CPC, it cannot be said that the court below has exercised its jurisdiction illegally or erroneously in consolidating the two suits together and refusing to stay the latter suit as sought for by the first defendant. 13. If that is the principle to be applied in the matter of stay of a suit under Sec.10 CPC, it cannot be said that the court below has exercised its jurisdiction illegally or erroneously in consolidating the two suits together and refusing to stay the latter suit as sought for by the first defendant. 13. The learned counsel appearing for the petitioners however, submitted that this being a suit of the year 1990, an early disposal of the same is highly essential in the interest of justice. In a connected Civil revision petition I have already allowed time for curing the defect by the plaintiff. Since the pleadings are completed, the court below may proceed to list the suit so as to dispose of the same at an early date preferably, within a period of ten months. The Civil revision petitions are dismissed subject to what has been stated above. There will be no order as to costs.