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2015 DIGILAW 1210 (JHR)

Ram Pratap Mahto v. Lalu Ram

2015-10-01

SHREE CHANDRASHEKHAR

body2015
Order Aggrieved by order dated 14.02.2014 in Title Suit No. 8 of 2010 whereby, application under Section 10 C.P.C. seeking stay of further proceeding in the suit till the disposal of Second Appeal No. 74 of 2006 has been rejected, the present writ petition has been filed. 2. Title Suit No. 69 of 1990 was instituted by one Lalu Ram who is respondent in the writ petition. In the suit, the plaintiff asserted that the suit land originally belonged to Banshi Pandey, Ajodhya Pandey and Sridhar Pandey, all sons of Late Ram Sevek pandey. The defendants received Rs. 3,000/- from the plaintiff as advance consideration money and executed written agreement on 27.04.1987 for sale of the suit land. The plaintiff further asserted that after receiving part of consideration money, physical possession of the suit land was delivered to him however, on 24.04.1990, the defendants sold the suit land to defendant no. 4–the petitioner herein and therefore, Title Suit No. 69 of 1990 was instituted. The suit was instituted for a direction upon the defendants first set to execute sale-deed with respect to Schedule-A property and for rectifying agreement dated 27.04.1990 for inserting plot no. 66 of village Chutia, P.S.Sadar, District-Ranchi along with H.N. No. 374 described in Schedule-A. Vide judgment and order dated 20.02.1995, the suit was decreed, against which Title Appeal No. 27 of 1995 was filed by the petitioner. On 04.08.1998, title appeal was partly allowed on the ground that the trial court did not frame issue regarding rectification of document nor evidence was adduced by the plaintiff on the point. Upon remand Title Suit No. 69 of 1990 was decreed vide judgment and order dated 30.01.2004 and the appeal preferred by the petitioner being Title Appeal No. 29 of 2004 was dismissed on 02.02.2006 as barred by limitation. Thereafter, the petitioner preferred Second Appeal No. 74 of 2006 which has been admitted for hearing on 16.08.2011. In the meantime, the respondent herein instituted Title Suit No. 8 of 2010 for declaration of his right, title and interest over the suit property and for delivery of physical possession of the suit property by evicting the defendants from the suit land. In the meantime, the respondent herein instituted Title Suit No. 8 of 2010 for declaration of his right, title and interest over the suit property and for delivery of physical possession of the suit property by evicting the defendants from the suit land. The petitioner therefore, filed petition dated 04.08.2010 under Section 10 C.P.C. seeking stay of further proceeding in Title Suit No. 8 of 2010 till final disposal of Second Appeal No. 74 of 2006 on the ground that issues framed in Title Suit No. 8 of 2010 are directly and substantially in issue in the earlier suit bearing number Title Suit No. 69 of 1990. The said application has been dismissed vide order dated 14.02.2014. 3. Heard the learned counsel for the parties. 4. Mr. Rohitashya Roy, the learned counsel for the petitioner submits that, issues in both the suits are directly and substantially similar and the decision in Title Suit No. 69 of 1990 would constitute res judicata for grant of relief in Title Suit No. 8 of 2010 and therefore, further proceeding in Title Suit No. 8 of 2010 should have been stayed. Referring to decision in “Shri Ram Tiwary & Anr. Vs. Bholi Devi & Anr.” AIR 1994 Patna 76 and “Sagar Shamsher Jung Bahadur Rana & Anr. Vs. The Union of India & Ors.” AIR 1979 Delhi 118, the learned counsel for the petitioner submits that an appeal is the continuation of the suit. Since Second Appeal No. 74 of 2006 is pending adjudication before this Court and, if the second appeal preferred by the petitioner is finally allowed, it would bar the relief sought by the respondent in Title Suit No. 8 of 2010. 5. Per contra, the learned counsel for the respondent submits that issues in both the suits are entirely different though, one of the issues may be same or similar however, it cannot be a ground for staying further proceeding in Title Suit No. 8 of 2010. It is further submitted that both the suits were instituted on different causes of action and therefore, Section 10 C.P.C. has no application in the present case. 6. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 7. It is not in dispute that parties in both the suits are different though, the petitioner is defendant in both the suits. 6. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 7. It is not in dispute that parties in both the suits are different though, the petitioner is defendant in both the suits. In Title Suit No. 69 of 1990, there are four defendants. The cause of action for instituting Title Suit No. 69 of 1990 was execution of sale-deed by defendants first set in favour of the petitioner herein. In Title Suit No. 69 of 1990, the plaintiff asserted that the defendants received part of consideration amount and delivered physical possession of the suit land. The suit was a suit for specific performance seeking a direction upon the defendants first set to execute sale-deed in favour of the plaintiff. A further prayer seeking rectification in agreement dated 24.04.1990 for inserting plot no. 66 along with H.N. No. 374 was also made. The suit was decreed and appeal preferred against the judgment and order decreeing the suit has been dismissed. The plea taken by the petitioner that in the event Second Appeal No. 74 of 2006 is finally allowed, it would constitute resjudicata for grant of relief in Title Suit No. 8 of 2010 is liable to be rejected. It is not in dispute that, on 19.09.2008, decree in Title Suit No. 69 of 1990 was executed under Order XXI Rule 34 C.P.C. and a sale-deed was executed by the order of the Court. In Title Suit No. 8 of 2010 the plaintiff asserted that in the meantime, the plaintiff was dispossessed and therefore, notice dated 23.12.2009 was sent to the defendant (petitioner herein) to deliver possession however, he did not deliver possession of the suit property. The suit was mainly for delivery of physical possession to the plaintiff by evicting the defendant from the suit property. It is thus, apparent that cause of action for instituting Title Suit No. 8 of 2010 is entirely different from the cause of action on which Title Suit No. 69 of 1990 was instituted. In both the suits, issues involved are entirely different. The controversy in a suit for specific performance mainly centres around the issue of the validity of the agreement for sale and whether the plaintiff has established readiness and willingness to perform his part of the agreement. In both the suits, issues involved are entirely different. The controversy in a suit for specific performance mainly centres around the issue of the validity of the agreement for sale and whether the plaintiff has established readiness and willingness to perform his part of the agreement. The petitioner is purchaser from defendant first set in Title Suit No. 69 of 1990 and therefore, the plea that the defendants' first set have title over the suit property or not is the main issue involved in both the suits, is liable to be rejected. The petitioner is claiming a right over the suit property flowing from sale-deed dated 24.04.1990 executed by the defendant first set in Title Suit No. 69 of 1990 and therefore, the issue involved in Title Suit No. 69 of 1990 would be the validity of agreement for sale dated 27.04.1987 and sale-deed dated 24.04.1990 whereas, in Title Suit No. 8 of 2010, the plaintiff has claimed declaration of his right, title and interest over the suit property on the basis of the sale-deed executed by the order of the Court. After the execution of sale-deed in his favour, the plaintiff claimed an order for delivery of possession by evicting the defendant from the suit land. 8. The object underlying Section 10 C.P.C. is to prevent two courts of concurrent jurisdiction from simultaneously trying two parallel suits. The public interest requires avoidance of two parallel suits being tried simultaneously on the same issue by two different Courts. The reason is obvious, that is, to avoid recording of two conflicting findings on issues which are directly and substantially in issue in both the suits. 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.” 9. The fundamental test for application of Section 10 C.P.C is whether a decision being rendered in the previous suit, the said decision would operate as resjudicata in subsequent suit. Another mandatory condition for application of Section 10 C.P.C. is that both the suits must be between the same parties and the subject matter of both the suits must be identical, same and the one. In “Aspi Jal & Anr. Vs. Khushroo Rustom Daddyburjor” reported in (2013) 4 SCC 333 , on the same day two suits were instituted seeking ejection from the suit premises; one on the ground of bonafide requirement for self-occupation and another on the ground of “nonuser for several years before institution of the suit”. During the pendency of those two suits, another suit was filed for eviction on the ground of “nonuser for a continuous period of not less than six months immediately prior to the institution of the suit”. Application under Section 10 C.P.C. seeking stay of proceeding in the third suit till final disposal of the first two suits, was allowed by the trial court and the same was affirmed by the Bombay High Court. The Hon'ble Supreme Court observed as under: 12. “As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what “the matter in issue” exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject matter of the two suits must be the same. This provision will not apply where a few of the matters in issue are common and will apply only when the entire subject-matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of nonuser for six months prior to the institution of that suit. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of nonuser for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of nonuser but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of nonuser in the earlier two suits. But if they establish the ground of nonuser for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.” 10. In the background of the law laid down by the Hon'ble Supreme Court, when the impugned order dated 14.02.2014 is examined, I find no infirmity in the said order. Accordingly, the writ petition is dismissed.