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2014 DIGILAW 970 (HP)

Anil Garg v. Dev Dutt

2014-07-24

TARLOK SINGH CHAUHAN

body2014
JUDGMENT Tarlok Singh Chauhan, J. 1. This petition under Article 227 of the Constitution of India is directed against the order dated 16.1.2014 passed by learned Civil Judge (Senior Division), Kasauli, District Solan in CMA No. 4/6 of 2014 in Civil Suit No. 102/1 of 2010 whereby he dismissed the application preferred by the petitioners under Section 10 of the Code of Civil Procedure. 2. The defendants are the petitioners herein and had preferred an application under Section 10 read with Section 151 of the Code of Civil Procedure for stay of the suit on the ground that the matter in controversy was already the subject matter of an earlier appeal pending in the Court of learned District Judge, Solan wherein the predecessors in interest of the parties were litigating under the same title and the issue in this suit was directly and substantially in issue in the previous suit. 3. This application was contested. The facts were admitted. However, it was denied that the controversy in the previous suit and the present suit were similar. It was further alleged that the cause of action of the previous suit was different from the present suit and as such, the suit was not liable to be stayed. 4. I have heard learned counsel for the parties and have also gone through the records carefully. 5. The learned Court below after making reference to the facts of the case, in para-4 of the order, observed as follows: “I have perused the record of the case and from the perusal of the record, it is evident that the fact that earlier civil suit bearing No. 372/1 of 06/99 was pending between the parties and was decided by Ld. Civil Judge, Jr. Division, Kasauli on 10.07.2009 is not disputed. It is also not disputed that against the said judgment and decree the present defendants No.1 to 3 have filed appeal bearing No. 98-S-13 of 2012 titled as Dinesh Chand vs. Pat Ram before Ld. District and Sessions Judge, Solan which is still pending. The certified copy of judgment and decree of Civil Suit bearing No. 372/1 of 06/99 has been placed on record. From the perusal of this judgment and decree it is evident that parties to this suit and parties in the present suit are not the same. District and Sessions Judge, Solan which is still pending. The certified copy of judgment and decree of Civil Suit bearing No. 372/1 of 06/99 has been placed on record. From the perusal of this judgment and decree it is evident that parties to this suit and parties in the present suit are not the same. From the perusal of judgment of Civil Suit bearing No. 372/1 of 2006/99 reveals that defendants No. 1 to 3 had been proceeded against ex-parte in that suit.” Thereafter, in paras 5 to 10 of the order, the learned trial Court has discussed the law and in paragraph-11, he has disposed of the application in the following terms: “11. In the present case the matter in issue in the previous suit bearing No. 372/1 of 06/99 decided by Ld. Civil Judge, Jr. Division, Kasauli and the present suit does not appear to be the same and in view of the law laid down by the Hon’ble Apex Court mere common grounds in the previous suit and subsequent suit will not attract Section 10 of CPC. In view of the aforesaid the present suit is not hit by principle of resjudicata and this application is not maintainable and is hereby dismissed. Now to come up for Rep. and issues on 12.3.2014.” 6. Thus, from what has been quoted above, it is clear that the sole reason recorded by the learned Court below for dismissing the application is that the parties to the earlier suit and the parties to the present suit are not same. No other reason whatsoever has been assigned or recorded by the learned Court below. 7. Section 10 of the Code of Civil Procedure reads 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 underlying object of the rule contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief. The policy of the law is to confine the plaintiff to one litigation, thus, obviating the possibility of two contradictory verdicts by two or more Courts in respect of the same relief. At the same time the object of the rule is to protect a person from multiplicity of proceedings as also to avoid conflict of decisions. The provisions of Section 10 are clear, definite and mandatory, a Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the condition laid down in Section 10 is fulfilled. 9. The learned trial Court could not have rejected the application simply on the ground that the parties in both the suits were different without taking into consideration the specific stand of the petitioners to the effect that their predecessor-in-interest were already parties to the said suit. This contention was required to be examined in detail before arriving at any conclusion. Apart from that, to invoke the provision of Section 10, it is not necessary that all the parties of the present suit must be the same in both the suits the same parties. In this context “same parties” means the parties between whom the matter substantially in issue has arisen and has to be decided. Complete identity of parties is not required and it is enough if there is sufficient identity of parties. That apart, there must be a conscious application of mind while examining such issue. The order passed by the learned Court below is non-speaking and therefore not sustainable and is accordingly set-aside. 10. In view of the above, the petition is allowed and the application under Section 10 read with Section 151 CPC is restored to its original number and the learned trial Court is directed to decide the same strictly in accordance with law. The parties through their counsel are directed to appear before the learned trial Court on 8.8.2014. 10. In view of the above, the petition is allowed and the application under Section 10 read with Section 151 CPC is restored to its original number and the learned trial Court is directed to decide the same strictly in accordance with law. The parties through their counsel are directed to appear before the learned trial Court on 8.8.2014. Interim order dated 10.4.2014 is vacated. Pending application, if any, also stands disposed of.