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2011 DIGILAW 750 (RAJ)

Rajesh Kathuria v. Priya Kathuria

2011-04-13

NARENDRA KUMAR JAIN

body2011
JUDGMENT 1. - Learned counsel for respondent has filed an application under Article 226(3) of the Constitution of India in both the writ petitions, separately, for vacation of adinterim ex-parte stay order dated 20.01.2010. 2. Learned counsel for both the parties submitted that point in issue in both the writ petitions is similar and parties are also similar, therefore, both the writ petitions may be heard together and disposed off.At the request of learned counsel for both the parties, arguments were heard and both the writ petitions are being disposed off finally by this common order. 3. Petitioner has preferred writ petitions challenging the impugned orders dated 26.11.2009 passed by the Additional District Judge No.8, Jaipur City, Jaipur, whereby application filed by petitioner to stay further proceedings of the Civil Suit Nos.13/2009 and 14/2009 till previously instituted suit No.115/2005 in the Court of Additional District Judge at New Delhi is disposed off, dated 06.08.2009, under Section 10 of the Code of Civil Procedure has been dismissed. 4. Learned counsel for petitioner referred the application dated 23.04.2009, filed by respondent No.1 Ms. Priya Kathuria in a suit for divorce under Section 13 of the Hindu Marriage in the Court of Additional District Judge, New Delhi and submitted that in the said application, declaration has also been sought to declare the sale of property situated at House No.D-237, Malviya Nagar, Jaipur and property situated at M.I. Road, Jaipur, as nonest and void ab initio and on that basis, he submitted that in the present suits instituted at Jaipur, which are pending in the Court of Additional District Judge No.8, Jaipur City, Jaipur, a prayer has been made to set aside Sale Deed dated 18.08.2006 and Power of Attorney dated 19.05.2004 in respect of House No.D-237, Mahesh Marg, Malviya Nagar, Jaipur and property situated at M.I. Road, Jaipur and to declare the same as null and void or ineffective against plaintiff. He, therefore, submitted that the prayer in both the matters was same, therefore, learned trial Court committed an illegality in not allowing his applications under Section 10 Civil Procedure Code and in not staying further proceedings of both the suits pending at Jaipur. 5. Learned counsel for respondent submitted that nature of suits instituted by respondent No.1 at Delhi and at Jaipur is different. 5. Learned counsel for respondent submitted that nature of suits instituted by respondent No.1 at Delhi and at Jaipur is different. He submitted that in previously instituted suit/Application at Delhi, a prayer was made for grant of divorce under Section 13 of the Hindu Marriage Act, whereas the present suit filed at Jaipur, was for declaration, permanent injunction, possession and cancellation of Power of Attorney as well as Sale Deed, therefore, the trial Court was absolutely right in rejecting the application of petitioner under Section 10 Civil Procedure Code. 6. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by the trial Court for rejecting the applications of petitioner under Section 10 Civil Procedure Code. 7. It is clear from Annexure-1 that one Hindu Marriage Application No.115/2005 was instituted by respondent No.1 Ms. Priya Kathuria under Section 13 of the Hindu Marriage Act in the year 2005, which is pending in the Court of Additional District Judge, New Delhi. Other suits instituted by Ms. Priya Kathuria, respondent NO.1, at Jaipur are suits for declaration, injunction, damages for use and occupation, possession and for cancellation of Power of Attorney and Sale Deed. 8. Sole submission of the learned counsel for petitioner is based on one misc./interim application dated 23.04.2009, filed by Ms. Priya Kathuria in Suit/application for grant of divorce, pending in the Court of Additional District Judge, New Delhi, which is not relevant/material while deciding application under Section 10 Civil Procedure Code. 9. Hon'ble Supreme Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256 , considered the scope of Section 10 Civil Procedure Code and held that object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Para 8 of the judgment is reproduced as under:- "7. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. Para 8 of the judgment is reproduced as under:- "7. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, Section 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." 10. Previously instituted application in the year 2005 by respondent No.1 Ms. Priya Kathuria was only with regard to grant of divorce under Section 13 of the Hindu Marriage Act and Sale deed with regard to house situated at Malviya Nagar, Jaipur etc. was executed in the year 2006, therefore, the said facts were not available in the year 2005 when the application was filed at New Delhi. Even otherwise, in a suit for divorce under Section 13 of the Hindu Marriage Act, such a prayer could not have been made. 11. From the facts narrated above, it is clear that prayer in the suit for divorce pending at New Delhi and in a suit pending at Jaipur, are absolutely different. Even otherwise, in a suit for divorce under Section 13 of the Hindu Marriage Act, such a prayer could not have been made. 11. From the facts narrated above, it is clear that prayer in the suit for divorce pending at New Delhi and in a suit pending at Jaipur, are absolutely different. In these circumstances, I am satisfied that the learned trial Court was absolutely right and justified in rejecting the application of petitioner under Section 10 of the Code of Civil Procedure . 12. In view of above discussions, I do not find any merit in these writ petitions and the same are, accordingly, dismissed with no order as to costs. 13. In view of above, both the applications filed under Article 226(3) of the Constitution of India in both the writ petitions, also stand disposed off. 14. Registry is directed to place on record a copy of this order in connected file.Petition dismissed. *******