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2010 DIGILAW 796 (CAL)

Bhai Bhai Sangha v. Rina Rani Patra

2010-07-13

TARUN KUMAR GUPTA

body2010
Judgment :- Tarun Kumar Gupta, J.:- The instant revisional application under Article 227 of the Constitution of India is directed against order dated 29.04.2005 passed by Sri A. K. Naiya, learned Civil Judge (Junior Division) 5th Court, Alipore, in Title Suit No.280 of 2003. By the impugned order learned Trial Court rejected the petition filed by the present petitioner under Section 10 of Code of Civil Procedure praying for stay of all further proceedings of Title Suit No.280 of 2003 filed by the present O.P. No.1 as plaintiff against present petitioners and another. It is a specific case of the present petitioners that the petitioner club on or about 17.08.2000 entered into an unregistered agreement with O.P. No.2 Bishnupada Saha for purchasing some lands as specified in Title Suit No.210 of 2001 at a consideration of Rs.2,60,000/- and as O.P. No.2 Bishnupada Saha was found reluctant to execute a registered deed of conveyance for the said land, the present petitioner club filed a Title Suit being No.210 of 2001 against the O.P. No.2 in the Court of learned Civil Judge (Senior Division) 7th Court, Alipore for specific performance of contract and permanent injunction and that O.P. No.2 after institution of said suit of 2001 by the present petitioner club sold away the suit property to O.P. No.1 Smt. Rina Rani Patra and accordingly she was made a party in Title Suit No.210 of 2001 and later on O.P. No.1 filed a false suit being Title Suit No.280 of 2003 against present petitioner club and O.P. No.2 vendor alleging dispossession from a portion of suit property by the petitioner club by way of making some alleged illegal construction with a prayer for permanent as well as mandatory injunction together with recovery of khas possession and other reliefs. As both the suits namely previously filed suit by the present petitioner club being Title Suit No.210 of 2001 and subsequent suit being Title Suit No.280 of 2003 filed by the O.P. No.1 related to same subject matter, the present petitioner club filed a petition under Section 10 of C.P.C. in the Court of learned Civil Judge (Junior Division), 5th Court, Alipore for stay of subsequently filed Title Suit No.280 of 2003. But the same was rejected by learned Trial Court without any basis. But the same was rejected by learned Trial Court without any basis. Hence, this revisional application under Article 227 of the Constitution of India has been filed for setting aside the impugned order dated 29.04.2005 as learned Trial Court failed to exercise jurisdiction so vested in it by law and caused grave injustice to the present petitioners. During hearing learned Advocate Subhrendu Halder for the petitioner has submitted that the present petitioner club filed the earlier suit being Title Suit No.210 of 2001 for specific performance of contract against the vendor of the O.P. No.1 i.e., O.P. No.2 and that during pendency of the said earlier suit of 2001 O.P. No.1 alleged to have purchased the suit property from O.P. No.2 and that as suit properties of both the suits were the same and the judgment of earlier Title Suit being Title Suit No.210 of 2001 filed by the present petitioner club will be binding on O.P. No.2 Bishnupada Saha, the vendor of O.P. No.1 (Plaintiff of subsequent suit), the O.P. No.1 will also be bound by the judgment of the title suit of 2001 and that on that score the subsequent suit of 2003 should have been stayed under Section 10 of C.P.C.. According to him if subsequent suit of 2003 is permitted to proceed then it will cause multiplicity of proceedings. Learned Advocate Debdutta Basu for Opposite Parties on the other hand has submitted that in order to attract Section 10 of C.P.C. it has to be established that the entire subject matter in controversy between the parties were same in both the suits. He has further submitted that the expression “matter in issue” in Section 10 has reference to entire subject matter in controversy between the parties and is not equivalent to any of the questions in issue. In support of his contention he has referred case laws reported in AIR 1975 Calcutta page 411 (Shaw Wallace and Company Ltd. versus Bholanath Madanlal Sherawalla and Ors.) and 88 CWN page 949 (Adhish Chandra Sinha v. Hindusthan Gas and Industries Ltd. and another). In support of his contention he has referred case laws reported in AIR 1975 Calcutta page 411 (Shaw Wallace and Company Ltd. versus Bholanath Madanlal Sherawalla and Ors.) and 88 CWN page 949 (Adhish Chandra Sinha v. Hindusthan Gas and Industries Ltd. and another). It came out from those referred case laws that the Hon’ble Division Bench of this High Court has already decided that the expression “matter in issue” in Section 10 of C.P.C. has reference to the entire subject matter in controversy between the parties and a mere identity of some of the issues in both the suits is not sufficient to attract Section 10 and unless the decision of the suit operates as res judicata, in the other suits it cannot be said that the matter in issue is directly and substantially the same in both the suits. It is true that the earlier suit of 2001 was filed by the petitioner club against O.P. No.2 being vendor of O.P. No.1 for specific performance of contract on the basis of an alleged unregistered agreement relating to the said property and that during pendency of the said earlier Title Suit of 2001 O.P. No.1 purchased the suit property from O.P. No.2 under registered Kobala and was in possession and filed a specific suit for temporary injunction as well as mandatory injunction with a prayer for recovery of possession against the present petitioner club alleging that the petitioner club made illegal construction in a portion of purchased property of O.P. No.1 plaintiff. As such subsequent suit of 2003 was filed on a distinct cause of action namely infringing the right of a lawful title holder of the property by way of making illegal encroachment and construction whereas the earlier suit was for specific performance of contract against the vendor of the plaintiff relating to the suit property over an unregistered document. It is true that the decision of the said earlier suit of 2001 may have some impact on the title of the plaintiff of Title Suit of 2003 (O.P. No.1) as she purchased the same from O.P. No.2 and that too during the pendency of earlier suit of 2001, but entire subject matter in both the suits were not identical. It is true that the decision of the said earlier suit of 2001 may have some impact on the title of the plaintiff of Title Suit of 2003 (O.P. No.1) as she purchased the same from O.P. No.2 and that too during the pendency of earlier suit of 2001, but entire subject matter in both the suits were not identical. As such Section 10 of C. P.C. had no application in the case in hand and impugned order dated 29.04.2005 passed by learned Civil Judge (Junior Division) 5th Court, Alipore in Title Suit No.280 of 2003 does not call for any interference from this Court by way of exercising revisional powers under Article 227 of the Constitution of India. As a result C.O. No.4007 of 2005 stand dismissed. The order of stay passed in respect of both the Title Suits namely Title Suit No.210 of 2001 and Title Suit No.280 of 2003 stand vacated. Office is to inform learned Trial Courts accordingly. Xerox certified copy of this judgment be supplied to the learned Counsels of the party / parties, if applied for.