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2014 DIGILAW 1212 (JHR)

Md. Faiyaz Khan v. Shahina Parween

2014-12-04

SHREE CHANDRASHEKHAR

body2014
Order Aggrieved by order dated 24.09.2008 whereby, the application dated 01.03.2008 under Section 10 C.P.C. was dismissed, the petitioners have approached this Court by filing the present writ petition. 2. The application was filed by the defendant nos. 7, 8 and 9 in Partition Suit No. 187 of 2005. Another Partition Suit No. 328 of 1986 was filed in the Court of Sub-Judge-IX, at Ranchi in which the applicants of Section 10 application are codefendants. 3. The learned counsel for the petitioners submits that the Partition Suit No. 187 of 2005 was instituted by the legal heirs of the defendant no. 4 in Partition Suit No. 328 of 1986. In the previously instituted suit that is, Partition Suit No. 328 of 1986, the petitioners are also made party-defendants and thus, the parties in Partition Suit No. 187 of 2005 are also party to Partition Suit No. 328 of 1986. It is further submitted that the scheduled suit property in Partition Suit No. 187 of 2005 forms part of the scheduled property in Partition Suit No. 328 of 1986. In these facts, it is submitted that if the subsequent suit being Partition Suit No. 187 of 2005 is permitted to continue it may result in conflicting order in as much as, the decree in subsequent suit that is, Partition Suit No. 187 of 2005 would bar execution in Partition Suit No.328 of 1986. 4. Section 10 C.P.C. 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 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.” 5. A bare perusal of Section 10 C.P.C. indicates that a subsequently instituted suit should not be permitted to continue. 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.” 5. A bare perusal of Section 10 C.P.C. indicates that a subsequently instituted suit should not be permitted to continue. It has been held by the Hon'ble Supreme Court that underlying object of Section 10 C.P.C. is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits, in respect of the same matter in issue and thus, avoiding recording of conflicting finding on issues which are “directly and substantially in issue” in a previously instituted suit. Thus, it is clear that Section 10 C.P.C. is attracted only when the “whole of subject matter” in both the suits is identical. The words “directly or substantially in issue” has been used in contradiction to the words “incidentally or collaterally in issue”. In the present case, I find that though suit property in Partition Suit No. 187 of 2005 forms part of the suit property in Partition Suit No. 328 of 1986 however, the subject matter in both the suits are definitely not the only and identical property. In the Partition Suit No. 328 of 1986 various properties are included in the schedule of properties. Moreover, parties in both the suits are also not the same. Thus, I find that the learned Trial Court has rightly rejected the application dated 01.03.2008. 6. In the result, I do not find any merit in the writ petition and accordingly, the writ petition is dismissed. Petition dismissed.