Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3859 (MAD)

M. Ramasamy v. Pappathi

2012-09-11

R.S.RAMANATHAN

body2012
Judgment :- 1. The plaintiff in O.S.No.380 of 1998, on the file of the Additional District Munsif Court, Namakkal, is the revision petitioner herein. He filed the suit for partition, stating that the properties are the ancestral properties of the plaintiff and the defendants and therefore, he is entitled to 48/210 share. In the plaint, the plaintiff has challenged the settlement deed, dated 25.10.1973, executed by his father in favour of one Mani @ Balasubramaniyan, son of defendants 5 and 6, contending that the settlement deed, is not a valid one, as the father has no right to execute the settlement deed in respect of the ancestral properties. When the trial has commenced, the revision petitioner/plaintiff filed an application under Section 10 C.P.C., to stay the proceedings in O.S.No.380 of 1998, till the disposal of the Second Appeal filed by him against the judgment and decree, passed in O.S.No.436 of 2000, on the file of the District Munsif, Namakkal. The said application was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed. 2. The learned counsel appearing for the revision petitioner submitted that O.S.No.436 of 2000, was filed by one Mr.Rajan, claiming to be purchaser of the suit properties from the defendants 2 and 3, who are the defendants 2 and 3, in O.S.No.380 of 1998. In O.S.No.436 of 2000, it is alleged that one Mr.Muthusamy Gounder, executed a settlement deed in favour of Mani @ Balasubramaniyan, son of defendants 2 and 3. After the death of the said Mani @ Balasubramaniyan, the third defendant, the mother of the said minor-Mani @ Balasubramaniyan, succeeded to the estate and sold the property to the plaintiff-Rajan. Therefore, he became the absolute owner of the property and filed the suit for declaration and that suit was dismissed. The appeal challenging the said decree, viz., A.S.No.23 of 2002, on the file of the Subordinate Court, Namakkal, was allowed and O.S.No.436 of 2000, was decreed by the First Appellate Court. Thereafter, the revision petitioner preferred Second Appeal before this Court with a delay and therefore, he filed M.P.No.1 of 2012, in S.A.Sr.No.113698 of 2011, to condone the delay and the same is pending. Thus, till the disposal of the Second Appeal, the proceedings in O.S.No.380 of 1998, has to be stayed. Thereafter, the revision petitioner preferred Second Appeal before this Court with a delay and therefore, he filed M.P.No.1 of 2012, in S.A.Sr.No.113698 of 2011, to condone the delay and the same is pending. Thus, till the disposal of the Second Appeal, the proceedings in O.S.No.380 of 1998, has to be stayed. The Court below, without properly appreciating the fact that the issue involved in both the suits is common, viz., Whether the settlement deed, dated 25.10.1973, executed by Muthusamy Gounder, in favour of Mani @ Balasubramaniyan is valid one or not? and the fact that the parties are also one and the same, and hence, O.S.No.380 of 1998, has to be stayed, otherwise, that will lead to conflict of judgments, dismissed the application. 3. It is submitted by the learned counsel for the respondent that under Section 10 C.P.C., only latter suit has to be stayed and the earlier one cannot be stayed. Admittedly, O.S.No.380 of 1998, is the earlier suit and O.S.No.436 of 2000, is the latter suit. Therefore by virtue of Section 10 C.P.C., earlier suit cannot be stayed till the disposal of the latter suit. The learned counsel, further submitted that in the partition suit, the rights of the parties will be decided finally and therefore, the scope of enquiry in the partition suit is elaborate than the scope of enquiry in the declaration suit, viz., the suit in O.S.No.436 of 2000. Hence, there is no need to stay the trial in O.S.No.380 of 1998. The learned counsel, further submitted that the revision petitioner has filed the application, at the point of time, when the case was posted for defendants' evidence and no attempt was made by him to stay the earlier proceedings. Moreover, the Second Appeal filed by him has not yet been numbered, and therefore, at this stage of the matter, the proceedings in O.S.No.380 of 1998, cannot be stayed. 4. The learned counsel relied upon the judgments reported in i) A.I.R. 1953 Bombay 117 in the matter of [ Jai Hind Iron Mart Vs. Tulsirarr Bhagwandas] ii) A.I.R. (1997) Delhi 232 in the matter of [ M/s. Arjies Aluminim Udyog Vs. Sudhir Batra, New Delhi ] and iii) A.I.R. (2005) S.C. 242 in the matter of [ National Institute of Mental Health and Neuro Sciences Vs. Tulsirarr Bhagwandas] ii) A.I.R. (1997) Delhi 232 in the matter of [ M/s. Arjies Aluminim Udyog Vs. Sudhir Batra, New Delhi ] and iii) A.I.R. (2005) S.C. 242 in the matter of [ National Institute of Mental Health and Neuro Sciences Vs. C.Parameshwara ] in support of his contention that Section 10 C.P.C., cannot be applied to the facts of the case on hand. Section 151 also cannot be invoked and even for invoking Section 151, the Court must satisfy that the earlier suit is an abuse of process of the Court or has been filed mala fide or to forestall the suit, which the defendant would have filed in another Court. The learned counsel, therefore, submitted that in the present case, none of these have been stated in the affidavit filed in support of the application and hence, this earlier suit cannot be stayed. 5. In the judgment reported in A.I.R. (2005) S.C. 242 (supra), the scope of Section 10 C.P.C., has been dealt with by the Hon'ble Supreme Court, which reads as follows:- "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 suit is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previously instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Section 10 applies only in cases where the whole of the subject matter in both the suit is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previously 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 subject matter in both the proceedings is identical". 6. Though, it is stated in Section 10 that when the matter in issue is directly and substantially in issue in the previously instituted suit, the latter suit has to be stayed, the object behind Section 10 C.P.C., is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. In this case, admittedly, O.S.No.436 of 2000, was tried and judgment was delivered and reversed in First Appeal. Therefore, the latter suit cannot be stayed, as the latter suit has already been disposed of. 7. Further, as per the provisions of Section 11 C.P.C., judgment between the same parties in a suit though filed latter is binding on the same parties in the earlier suit, if the earlier suit was not decided, prior to the latter suit. Therefore, the judgment in O.S.No.436 of 2000, will operate as res judicata to the parties in O.S.No.380 of 1998, as the parties in O.S.No.380 of 1998, are the parties in O.S.No.436 of 2000, and hence, the Court below ought to have stayed O.S.No.380 of 1998, till finality is reached in O.S.No.436 of 2000. 8. As stated supra, the issue in both the suits is identical, viz., whether the settlement deed executed by Mr.Munisamy Gounder, in favour of Mani @ Balasubramaniyan, is valid or not. If the settlement deed is upheld, then the parties in O.S.No.380 of 1998, cannot have any right over the properties and the partition suit will have to be dismissed. On the other hand, the settlement deed is declared as void or not binding on the legal representatives of the said Muthusamy Gounder, then they are entitled to the decree of partition. On the other hand, the settlement deed is declared as void or not binding on the legal representatives of the said Muthusamy Gounder, then they are entitled to the decree of partition. Therefore, till the issue regarding the settlement deed has been finally decided in O.S.No.436 of 2000, partition suit, viz., the suit in O.S.No.380 of 1998, has to be stayed. No doubt, the Second Appeal has not yet been numbered and the Miscellaneous Petition No.1 of 2012, has been filed to condone the delay and several steps have to be crossed and this Court has to condone the delay and the Second Appeal has to be admitted. In case, the Second Appeal is not admitted, then the suit in O.S.No.380 of 1998, has to be dismissed, as the parties have no right over the suit property. If the Second Appeal is admitted, then, till the disposal of the Second Appeal, the parties have to wait, as their rights have to be adjudicated in the Second Appeal. In any event, O.S.No.380 of 1998, has to be stayed. 9. In the judgment reported in A.I.R. (1997) Delhi 232 (supra) it has been held that substantial identity of matter in issue is the criteria for staying of the suit. In the present case, issue is common in both the suits, as stated supra. Further, the observation of the Bombay High Court, in the judgment reported in A.I.R. 1953 Bombay 117 ( referred supra), that in the absence of Section 10, the Court can exercise its inherent power to stay the suit only when the earlier suit is an abuse of process of Court or has been filed mala fidely and that judgment cannot be applied to the facts of the case on hand, as I have held that the parties in both the suits are one and the same and the judgment rendered in O.S.No.436 of 2000, will operate as res judicata in O.S.No.380 of 1998. Hence, the suit in O.S.No.380 of 1998, has to be necessarily stayed, till the final disposal of O.S.No.436 of 2000. 10. In the result, the Civil Revision Petition is allowed and the order passed by the Court below is set aside. No costs. Consequently, connected Miscellaneous Petition is closed.