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2005 DIGILAW 316 (GAU)

Rana Purkayastha v. Himadri Purkayastha

2005-04-19

ANIMA HAZARIKA

body2005
JUDGMENT Anima Hazarika, J. 1. The short question involved in this Revision Petition is whether Section 10 of the Code of Civil Procedure (for brevity the Code of Civil Procedure) can be invoked to stay the subsequent suit being Title Suit No. 39(T) 2001 pending in the Court of the Assistant of the Deputy Commissioner, Shillong, till the disposal of Title Suit No. 11 (T) 97 pending in the Court of the Assistant to the Deputy Commissioner, Shillong. 2. The main thrust of the Petitioner is that the subject matter, the parties and the issues involved in both the suits are the same. The right, title and interest over the suit land between the Petitioner and the opposite party in Title Suit No. 11 (T) 97 is to be decided first, then only a decree in Title Suit No. 39(T) 01 can be passed directing the Defendant No. 1, Registrar to register the impugned Sale Deed. Though in Title Suit No. 39(T) 01 two parties were added as parties being opposite party No. 2 and proforma opposite party No. 3 but the party No. 2 cannot agitate the matter independently without the opposite party No. 1. 3. Therefore, all the ingredients of Section 10 of the Code of Civil Procedure are available and the Court in exercise of revisional jurisdiction should stay the Title Suit No. 39(T)01, so that two conflicting decrees may not pass relating to the same subject matter and between the same parties. 4. In order to appreciate the factum advanced by the Petitioner, certain relevant facts are necessary to arrive at a definite finding as to whether Section 10 of the Code of Civil Procedure can be invoked in this Revision Petition. 5. In the suit being Title Suit No. 11(T)97, the Plaintiff (herein after referred to as opposite party) has filed the suit against the present Petitioner (Defendant in the suit) claiming the following reliefs namely: (a) To pass a decree for the recovery of possession of the premises consisting of three bedrooms excluding kitchen and latrine of the upstairs of the building which is now under the use and occupation of the Defendant in holding No. 164 and 165, Ward No. 1 of collecting circle of the Shillong Municipality, Shillong. (b) To evict the Defendant from the premises/room and to deliver vacant possession of the same to the Plaintiff. (c) Cost of the suit. (b) To evict the Defendant from the premises/room and to deliver vacant possession of the same to the Plaintiff. (c) Cost of the suit. (d) To declare that the Care Taker Instrument executed between the Plaintiff and the Defendant and particularly para 6 and 7 of the same is binding on the Defendant. (e) Any other relief or reliefs as the Plaintiff is entitled to. 6. It may be mentioned herein that in Title Suit No. 11(T)97, the pleadings were not exchanged by the Defendants and the Court has no occasion to frame issues as required under Order XIV of the Code. 7. In Title Suit No. 39(T)01, the Plaintiff No. 1 is the same as that in Title Suit No. 11(T)97. But another party Shri Gilbert Siangshai, has been added as Plaintiff No. 2, since he is the bonafide purchaser of the suit premises from the Plaintiff No. 1 as averred. In Title Suit No. 39(T)01, the Plaintiffs have arrayed the Registrar, East Khasi Hills District, Meghalaya, as main Defendant since the main Defendant refused to register the Sale Deed dated 17.11.2000 executed between the Plaintiff No. 1 and Plaintiff No. 2 vide order dated 23.8.2001, in respect of the suit property. In the said suit, the Petitioner in this revision Petition has been arrayed as Proforma Defendant. 8. In Title Suit No. 39(T) 2001, the Plaintiff have prayed the following reliefs: (a) Direct the Defendant to register the Sale Deed dated 17.11.2000 pertaining to the land mentioned in Scheduled-A of this plaint which has been purchased by the Plaintiff No. 2 from the Plaintiff No. 1 and/or may pass such further or other order or orders as your honour may deem fit and proper. (b) Grant cost of the suit. (c) Any other relief or reliefs as the Plaintiffs are entitled to. 9. In Title Suit No. 39(T)01 pleadings were exchanged by the parties and went on the file of the learned Assistant to the Deputy Commissioner, Shillong. On the basis of the said pleadings, several issues were framed which are quoted hereunder. (a) Whether there is a cause of action for filing the instant suit? (b) Whether the suit is maintainable in its present form? (c) Whether this Court has got jurisdiction to entertain and try this suit? (d) Whether the Plaintiff is the owner having a valid title over the suit premises? (a) Whether there is a cause of action for filing the instant suit? (b) Whether the suit is maintainable in its present form? (c) Whether this Court has got jurisdiction to entertain and try this suit? (d) Whether the Plaintiff is the owner having a valid title over the suit premises? (e) Whether the Plaintiff has the locus standi to file this suit? (f) Whether the suit is barred by the law of limitation? (g) Whether the suit is barred by the principles of estoppel waiver and acquiescence? (h) Whether the proforma Defendant is the Care Taker over the suit premises vide Care Taker Instrument dated 3.12.1985? (i) Whether the sale deed could be registered in spite of an objection filed by the proforma Defendant? (j) Whether the proforma Defendant can filed objection against the application for registration of the sale deed dated 17.11.2000? (k) Whether the proforma Defendant is a trespasser on the suit land? (l) Whether the Plaintiff is entitled to any relief or reliefs as prayed for by him in the suit? 10. I have gone through the petition made under Section 10 read with Section 151 of the Code of Civil Procedure along with the show cause reply filed by the Plaintiff No. 2 in Title Suit No. 39(T)01 and the order dated 10.10.03 passed by the learned Assistant to the Deputy Commissioner, Shillong, rejecting the prayer of Stay in respect of Title Suit No. 39(T)01. The Petitioner being aggrieved against the order dated 10.10.2003 passed by the learned Court below in Title Suit No. 39(T)01 had preferred an appeal being MCA No. 5(T)2003 before the Addl. Deputy Commissioner, East Khasi Hills District, Shillong. The learned Addl. Deputy Commissioner, vide order dated 30.7.2004 affirmed the order dated 10.10.2003 and dismissed the appeal, holding that there is no merit in the appeal. Against which, this Revision Petition has been filed. 11. Heard Mr. S. Dutta, learned Counsel appearing on behalf of the Petitioner alongwith Mr. K.K. Dey and Mr. H.S. Thangkhiew, learned Counsel appearing on behalf of the opposite parties. Considered the pleadings and the records very carefully in the light of the submissions made by the counsel appearing for the parties. Against which, this Revision Petition has been filed. 11. Heard Mr. S. Dutta, learned Counsel appearing on behalf of the Petitioner alongwith Mr. K.K. Dey and Mr. H.S. Thangkhiew, learned Counsel appearing on behalf of the opposite parties. Considered the pleadings and the records very carefully in the light of the submissions made by the counsel appearing for the parties. The following decisions have been referred which I have duly examined namely: (a) Radhika K. Parekh v. Konel Parekh, AIR 1993 Mad 90 (b) Mahangu Prasad Sah and another v. Prayag Sah and other, AIR 1975 (Gau) 40 (c) Arun General Industries Ltd. v. Rishabh Manufacturer Private Ltd. and other, AIR 1972 Cal. 128 (d) Subho Ram Kalita and other v. Dharmeswar Das Koch and other, AIR 1987 (Gau) 73 (e) Radha Devi v. Deep Narayan Mandal and other, (2003) 11 SCC 759 (f) Pukhraj D. Jain and other v. Gopala Krishna, (2004) 7 SCC 251 12. The earlier suit is admittedly filed by the Plaintiff against the Defendant (the petition in this Revision Petition) for eviction from holding No. 164 and 165, Ward No. 1, Shillong, which has been specifically stayed in the Suit on the ground that the Plaintiff is the owner of a plot of land measuring about 192.10 sq.m. in area with double storeyed building. The Plaintiff had been residing in Calcutta and as such, he is not in a position to look after the property and therefore, had entered into a care taker agreement instrument on 3.12.85 with the Defendant authorizing him to look after the property with a rider to deliver the possession as and when required by the Plaintiff. The Plaintiff vide Notice dated 23.11.96, had asked the Defendant to vacate the house and deliver the vacant possession to which he had refused to hand over the possession and hence, the suit and the decree sought for which had already been mentioned in earlier paragraph. 13. The title suit No. 39(T)01 relates to the registration of the Sale Deed dated 17.11.2000, executed between the Plaintiff No. 1 and Plaintiff No. 2 to which the registration has been refused by the Registrar on 23.8.2001, holding that the matter is related to a dispute over the possession of the land and property between the two parties and hence, directed the case to be settled by the Civil Court. Registration of the land and the property will be carried out only after the case is settled. The instant suit has been compelled to be filed by the Plaintiff on refusal of the Registrar to register the Sale Deed dated 17.11.2000, on objection being raised by the present Petitioner. The earlier suit was also compelled to be filed on refusal to hand over the vacant possession of the suit premises. 14. Section 10 of the Code of Civil Procedure, lays down that where the matter in issue is directly and substantially the same in two suits between the same parties under whom they or any of them claim litigating under the same title, the trial of the subsequently instituted suit shall be stayed. The opening words of the Section "No Court shall proceed" hardly leaves any room for doubt that where the condition envisaged in the Section are satisfied, it is mandatory for the Court to stay the trial of the subsequent suit. 15. In Bipin Bihari v. Jogendra Chandra AIR 1917 Cal 248, the celebrity Sir Ashutosh Mookerji observed: What then is a meaning of the expression "the matter in issue" the Defendants invite us to hold that the expression is equivalent to "any of the questions in issue". The obvious answer is that if that had been the intention of the framers of the Section, appropriate words might have been used to bring out such sense. We are of the opinion that the expression "the matter in issue" has reference to the entire subject in controversy between the parties. The object of the Section is to prevent the Courts of concurrent jurisdiction from simultaneously trying parallel suit in respect of the same matter and issues. 16. The expression "the matter in issue" was interpreted in the case of Shaw Wallace & Co. Ltd. v. Bhola Nath Madanlal Sherawala and other, AIR 1973 Cal. 411 in the following words: Unless the decision of the suit operates as res judicata in the other suit it cannot be said that the matter in issue is directly or substantially the same in both the suits. In other that the matter in issue is directly and substantially the same in both the suits. 411 in the following words: Unless the decision of the suit operates as res judicata in the other suit it cannot be said that the matter in issue is directly or substantially the same in both the suits. In other that the matter in issue is directly and substantially the same in both the suits. That is to say, the decision in one suit must non-suit the other suit before it can be said that the matter in issue in both the suits is directly and substantially the same. 17. In Jai Hind Iron Mart v. Tulsi Ram Bhagwandas AIR 1953 Bom 117 , the Division Bench of the Bombay High Court constituting of Changla C.J. and Gajendra Gadkar, J. has observed that: Section 10 does not contemplate and identity of issues between 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 Section 10 that the identity required is a substantial identity. There must be an identity of the subject-matter, the field of controversy between the parties in the two suits must also be same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same. 18. The word 'trial' in Section 10 has to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to proceed with the trial of any suit in which the matter in issue is also directly or substantially in issue in a previously instituted suit. The object of prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the later suit, nor does it create any substantive rights in the matters. It is not a bar to the institution of the suit. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the later suit, nor does it create any substantive rights in the matters. It is not a bar to the institution of the suit. It has been construed by the Court as not bar of the passing of interlocutory orders, such as an order for consolidation of the later suit when the earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the Court has to follow according to Section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word trial in Section 10 is not used in its widest sense as observed by the Apex Court in Indian Bank v. Maharashtra State Co-operative Marketing Federation Limited, AIR 1998 SC 1952 . 19. The case reported in AIR 1972 Cal 128 (supra), the Court held that: The words same parties mean the parties between whom the matter substantially in issue has arisen has to be decided. Complete identity of either the subject-matter or the parties is not required. It is enough if there is substantial identity of the parties. Section 10 of the Code can be invoked by the Court if the matters in controversy in two suits are substantially the same. Therefore the case under reference was answered in the affirmative staying the proceedings of Calcutta Court allowing the Proceedings to continue pending in Jabalpur Court. 20. The case reported in AIR 1975 Gau 40 (supra), it is held that if the ingredients of Section 10 of the Code is satisfied then the Court has the power to stay the proceedings of the subsequent suit. The purpose of Section 10 of the Code as has been held by the Court is to avoid conflict of the judicial decisions by preventing Courts of concurrent jurisdiction from adjudicating upon two or more parallel suits in which the matter in issue is substantially the same. There is no controversy over the proposition held by the Court. The purpose of Section 10 of the Code as has been held by the Court is to avoid conflict of the judicial decisions by preventing Courts of concurrent jurisdiction from adjudicating upon two or more parallel suits in which the matter in issue is substantially the same. There is no controversy over the proposition held by the Court. 21. In the case reported in AIR 1987 Gau 73 (supra), the Division Banch of this Court held that if the requirements under Section 10 of the Code of Civil Procedure are not satisfied, recourse to Section 151, is permissible for staying a suit to prevent abuse of the process of the Court. The case was referred by the learned single judge to a Division Bench on the question as to whether recourse to Section 151 Code of Civil Procedure is permissible for staying a suit or for injuncting a Plaintiff of a later suit from proceeding with his case under those circumstances where the requirement of Section 10 Code of Civil Procedure are not satisfied. The reference was answered in the affirmative, holding that if the Court is satisfied that a course is necessary for the ends of justice to prevent the abuse of the process of the Court and it is not violative of any express and specific provisions of the Code of Civil Procedure or any other law applicable to the case to be stayed or injuncted. 22. The case reported in AIR 1993 Mad 90 (supra), relates to custody of a minor son. The wife had moved the Family Court at Bombay seeking relief inter alia of divorce and for the interim custody of the minor child. Subsequently, the husband filed O.P. No. 694 of 1991 seeking his appointment as the guardian of the child. Admittedly, the same matter directly and substantially in issue in earlier and subsequent suits. The Court held that the subsequent suit has to be stayed in exercise of power under Section 10 of the Code of Civil Procedure. 23. The case reported in (2003) 11 SCC 759 (supra), relates to Title Suit filed in respect of the same premises between the same parties while the Title suit is pending, the Landlord filed eviction suit against the tenant who had filed the earlier title suit. The Rent Court was dealing with the eviction suit. 23. The case reported in (2003) 11 SCC 759 (supra), relates to Title Suit filed in respect of the same premises between the same parties while the Title suit is pending, the Landlord filed eviction suit against the tenant who had filed the earlier title suit. The Rent Court was dealing with the eviction suit. Rent Court is not required to decide the question of title, the Court can proceed with the trial of eviction suit even if it was filed during the pendency of the Title Suit involving the same parties as well as the subject matter. The Apex Court has held that in order to succeed in the eviction suit, the landlord is to prove the existence of contract of tenancy between him and the tenant on the ground on which eviction is sought. 24. The case reported in (2004) 7 SCC 251 (Supra), relates to specific performance of contract and application under Section 100 of the Code was filed to stay the suit (OS No. 1629/1988). The Court did not consider the application but dismissed the suit by deciding issues 3 and 4. The Court did not consider the application but dismissed the suit by deciding issues 3 and 4. The Apex Court allowing the appeal has held that Section 10 of the Code of Civil Procedure no doubt 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 or between parties under whom they or any of the 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. The Apex Court has further observed that mere filing of an application under Section 10 of the Code of Civil Procedure does not in any manner put an embargo on the power of the Court to examine the merits of the matter. The object of the Section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The Section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. The object of the Section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The Section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. The Apex Court remanded the matter with a direction to decide the application under Section 10 of the Code of Civil Procedure. 25. In the case reported in Chitivalasa Jute Mills v. Jaypee Rewa Cement, (2004) 3 SCC 85 , the Apex Court while dealing with the case under Section 25 and 10 of the Code of Civil Procedure has held that even if plea of stay of a suit under Section 10 is rejected, the Court has power to consolidate the two suits in exercise of inherent power under Section 151 of the Code of Civil Procedure for meeting ends of justice or to prevent abuse of the process of the Court. Consolidation of suits is ordered for meeting the ends of justice as it saves the parties from multiplicity of proceedings, delay and expenses. Complete or even substantial and sufficient similarity of the issues arising for decision in two suits enables the two suits being consolidated for trial and decision. Thus for the ends of justice, the Apex Court, directed the District Judge Rewa, to transmit the record of Original Suit No. 3B of 1998 to the Court of 1st Addl. Subordinate Judge at Visakhapatnam with the direction that the District Judge, Visakhapatnam, shall see that the original suit No. 3B of 1998 and OS No. 68 of 1997 are placed before one Court and on one date of hearing whereafter the two suits shall be heard and decided consistently." 26. In the present case at hand, though there is no exchange of pleadings in Title Suit No. 11 (T) 1997, but the fact remains that the case relates to eviction from the suit premises, whereas the subsequent suit No. 39(T) 2001 relates to registration of the Sale Deed dated 17.11.2000 being refused to register the same by the Registrar. The above facts clearly discloses and also establishes the relief claimed in Title Suit No. 39(T) 2001 is absolutely distinct and separate from that of the earlier suit. The above facts clearly discloses and also establishes the relief claimed in Title Suit No. 39(T) 2001 is absolutely distinct and separate from that of the earlier suit. Therefore, there is no illegality committed by both the Courts below in rejecting the prayer for stay of subsequent suit being Title Suit No. 39(T) 2001 and no interference is called for in exercise of power under Rule 36(a) of the Rules. 27. In my considered opinion and in order to avoid multiplicity of suit and conflicting judgments, this Court directs the Assistant to the Deputy Commissioner, Shillong to try both the suits together. The Petitioner is directed to file the written statements as required under the Code of Civil Procedure within a period of three weeks from the day of their appearance and the trial Court will proceed with both the cases simultaneously and dispose of the same as expeditiously as possible. The parties shall appear before the Court of Assistant to the Deputy Commissioner Shillong on 28.4.2005. 28. With the above observations and directions, this Revision petition is disposed of. 29. Send down the records immediately.