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2013 DIGILAW 272 (HP)

RAMESH KUMAR SOOD v. VEENA SOOD

2013-04-08

KULDIP SINGH

body2013
JUDGMENT KULDIP SINGH, J. - 1. THE order dated 4.10.2012 passed by learned Civil Judge (Junior Division), Court No. 4, Shimla in Civil Suit No. 194-1 of 2011/2009 rejecting the application, under section 10 of the Code of Civil Procedure has been challenged by the petitioner under Article 227 of the Constitution of India. 2. THE facts in brief are that respondent has filed a suit for possession of building known as Shop No. 8, The Mall, Shimla against the petitioner. The occupation charges and permanent prohibitory injunction have also been prayed in the suit. As per respondent, one Durga Devi alias Durgi Devi was owner of shop No. 8, the Mall Shimla. On her death on 28.1.2008, the respondent has inherited her estate being her adopted daughter. The adoption was made in the year 1961 The suit is being contested by the petitioner, who denied the claim set-up by the respondent. It has been denied that Durga Devi had adopted the respondent. On the contrary, the petitioner has asserted that Durga Devi has executed a registered will on 29.12.2005 in his favour. Therefore, petitioner is entitled to inherit the estate of Durga Devi. The suit is liable to be stayed under section 10 of the Code. The matter in issue in the present suit is directly and substantially in issue in the previously instituted suit No. 11-1 of 2008, which is still pending in the court. The said suit has been filed by the respondent seeking declaration that she is the adopted daughter of Durga Devi and has inherited her estate. 3. THE respondent has filed another suit for recovery against the petitioner being Civil Suit No. 24-1 of 2009/2008 pending in the court of learned Civil Judge (Senior Division), Court No.2, Shimla. In that suit also, plea has been taken by respondent that she is adopted daughter of Durga Devi. In that suit the petitioner moved an application, under section 10 of the Code for stay of the suit till the decision of Civil Suit No. 11-1 of 2008 pending in the court of Civil Judge (Senior Division), Shimla. On 18.2.2002 Civil Judge (Senior Division) has stayed the further proceedings in Civil Suit No. 24-1 of 2009/2008 4. THE petitioner moved separate application under section 10 of the Code for staying the trial of the suit. The application was contested by the respondent. On 18.2.2002 Civil Judge (Senior Division) has stayed the further proceedings in Civil Suit No. 24-1 of 2009/2008 4. THE petitioner moved separate application under section 10 of the Code for staying the trial of the suit. The application was contested by the respondent. The trial court on 4.10.2012 has dismissed the application, hence petition. Heard. The respondent in the first suit impleaded the petitioner and one Amit and said suit is for declaration that respondent has inherited the estate of Durga Devi alias Durgi Devi. The respondent has put up her claim to the estate of Durga Devi on the ground that she is the adopted daughter of Durga Devi and the adoption was made in the year 1961. In that suit the respondent has alleged that petitioner has no right, title or interest in the estate of Durga Devi, injunction has also been prayed in that suit. The petitioner has contested the suit by filing written statement. He has taken several preliminary objections. It has been denied that respondent is adopted daughter of Durga Devi. The petitioner has claimed the estate of Durga Devi on the basis of her will dated 29.12.2005 in his favour. It has been pleaded that respondent is a stranger. 5. IN the first suit the issues No. 1, 3 and 4 are as follows:- 1. Whether the plaintiff is the adopted daughter of deceased Durga Devi alias Durgi Devi as alleged? OPP. 3. Whether the Durga Devi alias Durgi Devi had bequeathed only khara No. 1342, 1382, 1383, 1384 and 1341 in khata khatauni No. 189min/248min, 249min at mauja Kaithu, Tehsil and District Shimla in favour of defendant No. 1 by virtue of will dated 29.12.2005 as alleged? OPP 4. Whether the defendant is absolute owner in possession of the entire movable and immovable property of the deceased by virtue of will dated 29.12.2005 executed by Durga Devi alias Durgi Devi as alleged? OPD-1 In second suit, the issues No. 1 and 8 are as follows:- 1. Whether the plaintiff is the adopted daughter of deceased Durga Devi alias Durgi Devi as alleged? OPP. 8. Whether the suit is liable to be stayed u/s 10 CPC as alleged? OPD. 6. OPD-1 In second suit, the issues No. 1 and 8 are as follows:- 1. Whether the plaintiff is the adopted daughter of deceased Durga Devi alias Durgi Devi as alleged? OPP. 8. Whether the suit is liable to be stayed u/s 10 CPC as alleged? OPD. 6. ON 18.2.2010, the learned Civil Judge (Senior Division) in second suit has held once the matter in dispute is directly and substantially in issue in previously instituted suit No. 11-1 of 2008 between the same parties pending in the court of competent jurisdiction, the court cannot proceed with the trial of the second suit. There is possibility of conflicting judgments. The second suit was stayed and issue No. 8 was decided in favour of petitioner herein. In the third suit filed by the respondent, the respondent has taken the plea that Durga Devi was owner of shop No. 8, the Mall Shimla and she was adopted by Durga Devi in the year 1961. Durga Devi has died on 28.1.2008 leaving behind respondent as her legal heir. The suit is for possession of shop No. 8, the Mall Shimla and mesne-profits have also been claimed. The petitioner has contested the suit. He has taken several preliminary objections including that suit is liable to be stayed under section 10 of the Code in view of CS No. 11-1 of 2008 in which respondent has set up her claim being the adopted daughter of Durga Devi and on that basis she has claimed the succession to the estate of Durga Devi. The matter in controversy in the third suit and first suit is materially and substantially same. The petitioner has claimed that Durga Devi on 29.12.2005 has executed a registered will in his favour. 7. THE learned Civil Judge (Junior Division) on 4.10.2012 has observed that relief claimed in the first suit and the third suit are not substantially and directly same, on failure of respondent to prove title in the third suit, law will take its own course. The suits at the most can be tried and decided by one court, but third suit can not be stayed. The Section 10 of the Code is as follows:- "10. The suits at the most can be tried and decided by one court, but third suit can not be stayed. The Section 10 of the Code is as follows:- "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 limits 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." 8. THE learned counsel for the respondent has relied National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara AIR 2005 SC 242 wherein the Supreme Court has held 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 trails 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. 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 contra-distinction 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." In National Institute of Mental Health and Neuro Sciences (supra) emphasis is on the identity of the subject matter in both the suits. The second suit is not required to be repetition or replica of the first suit. The identity of the subject matter in two suits can be tested from the angle whether on core issue(s) in both the suits, the decision in the first suit will be res judicata in the second suit and will ultimately decide the fate of the second suit. It has been stated by learned counsel for the parties that in third suit issues have not been framed, but it has not been denied that main controversy between the parties in third suit is also whether the respondent is adopted daughter of Durga Devi alias Durgi Devi and whether Durga Devi alias Durgi Devi had executed will dated 29.12.2005 in favour of the petitioner. The issue No.1 in the fist suit is whether the respondent is adopted daughter of Durga Devi alias Durgi Devi. The issues No.3 and 4 in the first suit are with respect to will dated 29.12.2005 of Durga Devi alias Durgi Devi in favour of the petitioner. The same controversy of adoption and will is also involved in the third suit. 9. THE decision on issues No. 1, 3 and 4 in the first suit will have an impact on the third suit. The same controversy is also involved between the parties in the second suit which has already been stayed under Section 10 of the Code on 18.2.2010. The parties are satisfied with the order dated 18.2.2010 inasmuch as it has not been contended that any party has assailed the order dated 18.2.2010 staying the second suit. The same controversy is also involved between the parties in the second suit which has already been stayed under Section 10 of the Code on 18.2.2010. The parties are satisfied with the order dated 18.2.2010 inasmuch as it has not been contended that any party has assailed the order dated 18.2.2010 staying the second suit. In order to avoid conflicting judgments in first suit and third suit on core issues of adoption of respondent by Durga Devi alias Durgi Devi and of will in favour of the petitioner by Durga Devi alias Durgi Devi, it is necessary that the third suit is also stayed till the decision of the first suit between the parties more particularly when second suit between the parties has also been stayed. 10. IN view of above, the petition is allowed. The order dated 4.10.2012 passed by learned Civil Judge (Junior Division), Court No. 4, Shimla in Civil Suit No. 194-1 of 2011/2009 is set-aside. The Civil Suit No. 194-1 of 2011/2009 pending in the Court of learned Civil Judge (Jr. Division), Court No.4, Shimla is stayed till the decision in Civil Suit No. 11-1 of 2008 pending in the Court of learned Civil Judge (Senior Division), Shimla. The pending application is also disposed of in view of disposal of the main petition. Petition is allowed.