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2014 DIGILAW 1847 (HP)

Bahar Murtaza Ali v. Rohini Wahi alias Roohani

2014-12-09

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The applicant/defendant has preferred this application under Section 10 of the Code of Civil Procedure for staying the present suit. 2. The facts as detailed in this application are that till date there are three civil suits filed by the parties before different Courts. These suits have been filed after death of Faiz Murtaza Ali, the details of these civil suits are given as under: (a) Civil Suit No. 920 of 2013 is pending before the Civil Judge, Palampur, District Kangra, H.P. and was filed on 6.8.2013. This suit was filed by the defendant because the plaintiffs wanted to take the forcible possession of the suit property armed with an illegal order passed by the Deputy Commissioner, Kangra at Dharamshala, who had no jurisdiction to pass any such orders. The pleadings of the parties will go to show that the replying defendant claims the ownership of the property on the basis of Will dated 14.4.2013 and conferring of this property on the defendant by virtue of mehar. The factum of marriage between the defendant and the deceased Faiz Murtaza Ali has been denied by the plaintiffs. It is alleged that Faiz Murtaza Ali never executed the Will dated 14.4.2013. (b) Civil Suit No. 1815/2013, “Mrs. Bahar Murataza Ali and others vs. Rohini Wahi alias Roohani and others” is pending before Hon’ble Delhi High Court. This suit has been filed on 11.9.2013. In this suit, the Will dated 14.4.2013 alongwith another Will dated 19.6.2013 has been challenged. It is stated by the plaintiffs that the deceased Faiz Murtaza Ali has never executed these Wills and they are absolute owners of the properties alongwith a prayer for permanent injunction. (c) Civil Suit No. 4048 of 2013 “Mrs. Bahar Murtaza Faiz Ali vs. Rohani Ali alias Roohani” has been filed before this Hon’ble court i.e. present suit. Though the present suit has been titled as the suit for possession, declaration, permanent and mandatory injunction but essentially in terms of the prayers and pleadings, the plaintiffs have challenged the Will dated 14.4.2013 and have alleged that the defendant was never married to the deceased Faiz Murtaza Ali and that the plaintiffs are the only heirs of deceased Faiz Murtaza Ali. As per the applicant, the matter directly and substantially in issue in all these three suits are: (i) Whether the defendant is legally wedded wife of deceased, Faiz Murtaza Ali ? (ii) Whether the defendant was given the present suit property by virtue of mehar? (iii) Whether the deceaed, Faiz Murtaza Ali, had executed the Will dated 14.4.2013? (iv) Whether the plaintiffs and defendant would be entitled to inherit the properties of the deceased, Faiz Murtaza Ali, being his heirs in accordance with the Muslim Law. As such, the present suit, according to the applicant, is required to be stayed in terms of Section 10 of Civil Procedure Code because the matter in issue in the present suit is directly and substantially in issue in previously instituted suits between the parties. 3. The non-applicants/plaintiffs in their reply submitted that the provisions of Section 10 of the Code of Civil Procedure were not at all attracted to the facts of the present case because of the following reasons: “3. That Civil Suit No. 820 of 2013 is pending before the Civil Judge, Palampur, District Kangra, H.P. wherein the parties are as follows: Rohini Wali – the plaintiff and Shahnaz Ali, Seher Ali Saini and Bhisham Saini – the defendants, however, in the present suit (Civil Suit No. 4084/13) Bhisham Saini is not a party. Plaintiff No.1 herein is also not a party to Civil Suit No. 820 of 2013. Further, it is relevant to mention here that the Ld. Civil Judge, Palampur has no jurisdiction with regard to declaration of right, title and possession of the suit property due to lack of pecuniary jurisdiction. 4. That CS (PS) No. 1815 of 2013 filed by the plaintiffs is pending before the Hon’ble High Court of Delhi at New Delhi wherein the plaintiffs seek declaration of purported WILLS dated 14.04.2013 & 19.06.2013 as null and void and wherein all the beneficiaries of the purported WILLS dated 14.4.2013 and 19.6.2013 including the defendant herein Rohini Wali @ Rophani have been made defendants. Again in CS (OS) No. 1815/2013, Mr. Bhisham Saini is not a party. Again in CS (OS) No. 1815/2013, Mr. Bhisham Saini is not a party. Further, the suit property is not within the jurisdiction of the Delhi High Court and also no relief has been claimed in respect of the suit property before the Hon’ble Delhi High Court, therefore, the Hon’ble Delhi High Court has no jurisdiction to pass any order in respect of right, title and possession of the suit property.” 4. It is further submitted that it is only this Court which has jurisdiction to pass the decree in respect of the right, title and possession of the suit property, whereas the relief claimed in the other suits are entirely different and only some of the parties are common. It is further contended that in the suit pending before the Civil Judge, Palampur, the parties are different and above-all that Court has no jurisdiction with regard to declaration of right, title and possession of the suit property due to lack of pecuniary jurisdiction. It was lastly submitted that the plaintiffs alone are the natural heirs of late Sh. Faiz Murtaza Ali and have challenged the legal status of the defendant, who is simply a trespasser in the suit property. 5. I have heard learned counsel for the parties and have also gone through the records carefully. 6. Section 10 of the Code of Civil Procedure (for short 'Code’) reads thus:- “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]. Exlanation.- 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.” The applicability of this provision would be attracted if; Firstly, the matter in issue in the suit is directly and substantially in issue in a previously instituted suit between the same parties; Secondly, the previously instituted suit is pendingi) in the same Court in which the subsequent suit is brought; or ii) in any other Court in India (whether superior, inferior or coordinate); or iii) in any Court beyond the limits of India established or continued by the Central Government; or iv) before the Supreme Court; and Thirdly, where previously instituted suit is pending in any of the Courts mentioned in clause (b) or clause (c), such Court is a Court of jurisdiction competent to grant the relief claimed in the subsequent suit. 7. One of the essential ingredients of applicability of Section 10 of the Code is the competency of the first Court to grant the reliefs claimed in the second suit. Now it would be seen that the suit filed before this Court has been valued at Rs.2 crores and is, therefore, admittedly not triable by the Civil Judge, Palampur, whose jurisdiction in terms of the notification No.HHC/PJ/93- I—dated 03.10.2013 is only to try the suit whose pecuniary jurisdiction is Rs.10,00,000/-. The relevant portion of the notification is extracted below:- “The High Court of Himachal Pradesh, in exercise of the powers vested under Section 29 read with Section 10 and 11 of the Himachal Pradesh Courts Act, 1976 as well as in supersession of the Notification dated, 8.4.2009, has been pleased to pass the following orders :- I. District Judges/Addl. District Judge The court of District Judge/Additional District Judge shall have the pecuniary jurisdiction in all original Civil Suits the value of which exceeds Rs. 20,00,000/- (Rupees twenty lacs) but does not exceed Rs.30,00,000/-(Rupees Thirty lacs). II. Civil Judge (Senior Division) The Court of Civil Judge (Senior Division) shall exercise the Jurisdiction in all original Civil Suits the value of which exceeds Rs.10,00,000/-(Rupees Ten Lacs) but does not exceed Rs.20,00,000/-(Rupees Twenty lacs). III. Civil Judge (Junior Division) The court of civil Judge (Junior Division) shall exercise the jurisdiction in all original Civil Suits the value of which does not exceed Rs.10,00,000/-(Rupees ten lacs).” 8. III. Civil Judge (Junior Division) The court of civil Judge (Junior Division) shall exercise the jurisdiction in all original Civil Suits the value of which does not exceed Rs.10,00,000/-(Rupees ten lacs).” 8. It would also be clear from a bare reading of the aforesaid notification that all suits valued above Rs.30 lacs would only be triable and adjudicated by this Court. It cannot be disputed that the jurisdiction would include both pecuniary as well as territorial. It is also a trite that jurisdiction with reference to the subject-matter of a claim depends only upon the allegations in the plaint and not upon the allegations in the written statement. It is also equally settled that a counter-claim for all purposes has to be treated as an independent suit and is governed by the rules as are applicable to the plaint. A reference to the counter claim is being made only because the case law cited by the plaintiffs-respondents relates to cases where counter-claim had been filed beyond pecuniary jurisdiction of the Courts and were held to be not maintainable. 9. The learned counsel for the plaintiffs-respondents has vehemently contended that in case a counter claim which is in the nature of a plaint is filed outside the pecuniary jurisdiction of the Court, the same cannot be allowed to be introduced. In support of his submissions, he has placed reliance upon the judgment of the Bombay High Court in Barthels and Luders GmbH versus M.V. 'Dominique’ AIR 1988 Bombay 380 relevant portion whereof reads thus:- “6. Under Order 8, R.6A of the Code of Civil Procedure a defendant in a suit may set up by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. The proviso set out that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. The proviso set out that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Under O.8, R.6, therefore, once a suit has been filed the defendant can set up by way of counter-claim any right or claim against the plaintiff which arises before the defendant has delivered his defence or before the time limited for delivering his defence has expired. This counter-claim may be a claim in the nature of damages also. The only restriction as set out in the provision is that the counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. There is no restriction regarding territorial jurisdiction of the Court. This is because the suit and the counter-claim are in many ways not two independent proceedings but a united proceeding. Although O.8, R.6A provides that the counter-claim is to be treated as a plaint and is to be governed by the rules applicable to plaints, it is not to be treated as a completely separate suit. Infact O.8, R.6A sub-rule(2) the counter-claim is to be treated as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim, so that both the proceedings can be disposed of by a common judgment.” 10. In Cofex Exports Ltd. versus Canara Bank AIR 1977 Delhi 355, the following observations have been made:- “34. In Cofex Exports Ltd. versus Canara Bank AIR 1977 Delhi 355, the following observations have been made:- “34. The following things are in common in set off and counter claim: (1) None should exceed the pecuniary limits of the jurisdiction of the Court; (2) Both are pleaded in the written statement, if the law governing the Court permits such plea being raised by the defendant in the written statement; (3) The plaintiff is expected to file a written statement in answer to a claim for set off or to a counter claim; (4) Even if permitted to be raised, the Court may in appropriate cases direct a set off or counter claim being tried separately; (5) A defendant cannot be compelled to plead a set off nor a counter claim; he may as well maintain an independent action for enforcing the claim forming subject matter of set off or counter claim; (6) Both are liable to payment of court-fee under sch.1 Art. 1 of Court-fees Act, 1870; (7) Dismissal of suit or its withdrawal would not debar a set off or counter claim being tried, may be followed by a decree against the plaintiff.” 11. I find considerable force in the contentions raised by the plaintiffs-respondents because the Hon’ble Supreme Court in Gurbachan Singh versus Bhag Singh and others AIR 1996 SC 1087 has clearly held that though the counter claim for possession by defendant can be entertained in a suit filed for injunction by the plaintiff by virtue of Order 8 Rule 6(A) (1) but the same should not exceed pecuniary jurisdiction of the Court. Relevant para thereof reads as follows:- “3. It is true that Rule 6A(a) was introduced by Amendment Act of 1976. Preceding the amendment it was settled law that except in a money claim counter claim or set off cannot be set up in other suits. The Law Commission of India had recommended, to avoid multiplicity of the proceedings, right to the defendants to raise the plea of set off in addition to a counter claim in Rule 6 in the same suit irrespective of the fact whether the cause of action for counter claim or set off had accrued to defendant either before or after the filing of the suit. The limitation was that the counter claim or set off must be pleaded by way of defence in the written statement before the defendant filed his written statement or before the time limit for delivering the written statement has expired, whether such counter-claim is in the nature of a claim for damages or not. Further limitation was that the counter-claim should not exceed the pecuniary limits of the jurisdiction of the Court. In other words, by laying the counter claim pecuniary jurisdiction of the Court cannot be divested and the power to try the suit already entertained cannot be taken away by accepting the counter claim beyond its pecuniary jurisdiction. Thus considered, we hold that in a suit for injunction, the counter-claim for possession also could be entertained by operation of Order 8 Rule 6(A)(1) of C.P.C.” 12. This position of law was reiterated in Jag Mohan Chawla and anther versus Dera Radha Swami Satsang and others AIR 1996 SC 2222 . 13. Thus, in view of what has been discussed above, it can safely be concluded that since the Court at Palampur does not have the pecuniary jurisdiction to entertain the subsequent suit which has been filed before this Court and has been valued at Rs.2 crores for the purpose of jurisdiction, the proceedings in the present suit cannot be stayed. Accordingly this application being without merit is dismissed. 14. Before parting, it may be observed that a number of decisions have been cited by the parties, however, the same deal with the general principles regarding applicability of Section 10 of the Code and do not deal with the specific cases as are applicable to the facts of the present case and, therefore, the judgment is not being burdened by citing and discussing those decisions.