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2011 DIGILAW 575 (AP)

Kolan Balwanth Reddy v. Reddy Janga Reddy

2011-07-28

G.ROHINI

body2011
Judgment : The Revision petitioner is the defendant in O.S.No.427 of 2008 on the file of the Court of the Additional Junior Civil Judge-cum-XVII Metropolitan Magistrate, Rajendranagar, Rangareddy District. The respondent herein/plaintiff filed the suit for injunction restraining the defendant/revision petitioner from interfering with his possession and enjoyment of the plaint schedule property. 2. The defendant/revision petitioner contested the suit claim and while evidence is in progress, he filed I.A.No.544 of 2010 under Section 10 of the Code of Civil Procedure seeking stay of the trial in the suit on the ground that W.P.No.29001 of 2008 relating to the same subject-matter is pending on the file of this Court. The Court below dismissed the said application by order dated 20.12.2010 and aggrieved by the same the present Civil Revision Petition is filed. 3. I have heard the learned counsel for the petitioner. 4. The material available on record shows that the suit was initially filed in the year 2004 in the Court of the Principal Junior Civil Judge. Subsequently on transfer to the Court of the Additional Junior Civil Judge, Rajendranagar, it has been re-numbered as O.S.No.427 of 2008. The defendant/Revision petitioner filed written statement claiming title over the suit property on the basis of the order dated 31.7.1998 passed by the Mandal Revenue Officer under Section 5-A of the A.P. Rights in Land and Pattadar Pass Books Act, 1971 (for short, ‘ROR Act’), pursuant to which the defendant’s name was stated to have been incorporated in the revenue records as pattadar. Against the said order of Mandal Revenue Officer, though the plaintiff/respondent herein filed an appeal before the Revenue Divisional Officer, Chevella, the same was dismissed. However the Revision filed by him before the Joint Collector, R.R. District was allowed by order dated 6.11.2008 and challenging the said order, dated 6.11.2008, the defendant/Revision petitioner filed W.P.No.29001 of 2008 in which this Court directed that status quo shall be maintained by both the parties with regard to the possession of the land in question. 5. Having regard to the pendency of W.P.No.29001 of 2008, the learned counsel for the petitioner contends that the suit proceedings cannot be allowed to go on till the disposal of the writ petition and therefore the Court below ought to have allowed the petition filed by the defendant under Section 10 of C.P.C. for stay of proceedings in O.S.No.427 of 2008. 6. 6. Section 10 of CPC reads as under: “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 limit of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation: The pendency of a suit in a foreign Court does not preclude the courts in India from trying a suit founded on the same cause of action.” 7. A plain reading of the above provision shows that where the matter in issue in a suit is directly and substantially in issue in a previously instituted suit between the same parties, the Court in which the latter suit is filed is prohibited from proceeding with the trial of that suit. It is apparent that to attract the prohibition under Section 10 of CPC, the condition precedent is that the issue involved in both the suits should be directly and substantially the same. 8. In the case on hand, it is true that both O.S.No.427 of 2008 and W.P.No.29001 of 2008 are between the same parties and the schedule property is common to both the proceedings. It is also not in dispute that O.S.No.427 of 2008 was actually filed in the year 2004 in the Court of the Principal Junior Civil Judge (West & South), Rangareddy as O.S.No.82 of 2004 and on transfer to the Court of the Additional Junior Civil Judge-cum-XVII Metropolitan Magistrate, Rajendranagar, it is re-numbered as O.S.No.427 of 2008. Much prior to that, by order dated 31.07.1998 passed by the Mandal Revenue Officer, Shamshabad under Section 5-A of the ROR Act the unregistered sale in favour of the plaintiff was validated and ultimately by virtue of order, dated 6.11.2008 passed by the Revisional authority - Joint Collector, Rangareddy - under Section 9 of the ROR Act, the Mandal Revenue Officer’s order dated 31.07.1998 was set aside. Against the said order, the defendant filed W.P.No.29001 of 2008 which is admittedly pending on the file of this Court. 9. Against the said order, the defendant filed W.P.No.29001 of 2008 which is admittedly pending on the file of this Court. 9. Since the proceedings under the ROR Act were initiated prior to the filing of O.S.No.427 of 2008, the learned counsel for the petitioner vehemently contended that the proceedings in the suit being the subsequent proceedings, are liable to be stayed under Section 10 of CPC. 10. At the outset, it is to be noticed that the proceedings under the ROR Act are mere statutory proceedings which are under challenge in W.P.No.29001 of 2008. Even assuming that the contention of the petitioner that the matter in issue in W.P.No.29001 of 2008 can be treated as the proceedings in a previously instituted suit is correct, the question that requires consideration is whether the matter in issue in O.S.No.427 of 2008 can be said to be directly and substantially in issue in the writ petition pending before this Court. 11. As noticed above, O.S.No.427 of 2008 is a suit for mere injunction restraining the defendant/revision petitioner from interfering with the suit schedule property. The cause of action for the said suit arose on 17.01.2004 and 25.01.2004 when the defendant had allegedly attempted to interfere with the suit schedule property and tried to dispossess the petitioner, whereas the validity and legality of the order of validation, dated 31.07.1998 made under Section 5-A of the ROR Act is the subject-matter of W.P.No.29001 of 2008. Thus it is apparent that the matter in issue in O.S.No.427 of 2008 is entirely different from the matter in issue in W.P.No.29001 of 2008. May be that, the schedule property of the suit and the writ petition is common, however the proceedings are founded on different cause of action and the questions for decision in the suit and the writ petition are entirely different. The proceedings in the suit and the writ petition have nothing in common except the property. Hence the suit and the writ petition under no circumstances can be regarded as parallel litigation and there is no possibility of contradictory decisions in respect of the same cause of action. Therefore the proceedings in the suit cannot be held to be barred under Section 10 of CPC. Hence the suit and the writ petition under no circumstances can be regarded as parallel litigation and there is no possibility of contradictory decisions in respect of the same cause of action. Therefore the proceedings in the suit cannot be held to be barred under Section 10 of CPC. Since the matter in issue in O.S.No.427 of 2008 is not at all related to the issues being considered in W.P.No.29001 of 2008, as rightly held by the Court below Section 10 of CPC has no application. Hence the order under Revision cannot be held to be erroneous on any ground whatsoever. 12. Accordingly, the Civil Revision Petition is dismissed. No costs.