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2015 DIGILAW 1571 (MAD)

Pranay Choudhry v. Jayalakshmi

2015-03-23

PUSHPA SATHYANARAYANA

body2015
Judgment :- 1. The defendant in O.S.No.847 of 2010 is the revision petitioner herein, aggrieved by the order passed in I.A.No.25 of 2015 refusing to stay the suit in O.S.No.847 of 2010 on the file of the IV Additional Sub-Judge, Tiruchirapalli, till the disposal of O.S.No.597 of 2007. The said application was dismissed and aggrieved by the same, the above revision has been filed by the defendant. 2. O.S.No.847 of 2010 is filed by the plaintiffs praying for setting aside and cancellation of the sale deeds in Document Nos.1834 of 2000, 1835 of 2000, 1836 of 2000 and 1838 of 2000 and for consequential injunction thereon and the suit is at the stage of cross-examination of P.W.1. While so, the application under Section 10 of the Code of Civil Procedure is filed by the defendant, who is the petitioner herein for stay of the suit. 3. The contention of the defendant/petitioner is that a suit in O.S.No.591 of 2007 is pending on the file of the II Additional Sub-Court, Tiruchirapalli which was filed on 12/11/1007 and the present suit is filed on 26/11/2007 as O.S.No.847 of 2010 is also pending. Therefore, according to the defendant, the issue involved in both the suits are directly and substantially the same. Hence the subsequent suit has to be stayed. 4. Admittedly, the suit properties involved in O.S.No.597 of 2007 and O.S.No.847 of 2010 are not the same. The parties to both the suits are also not the same. 5. It is also admitted that the present petition was filed before this Court for transfer and joint trial which was subsequently withdrawn. It is the contention of the revision petitioner that Section 10 of the Code of Civil Procedure contemplates only the issues directly and substantially the same in the subsequent suit. Further, Section 10 of the Code of Civil Procedure does not require the parties to the proceedings to be the same. Hence prayed for the stay of the subsequent suit viz., O.S.No.847 of 2010. 6. A perusal of the plaint in O.S.No.597 of 2007, it is clear that the plaintiffs in that case are totally different and their claim of title is of a different person. In O.S.No.597 of 2007, the relief is with respect to the Document No.1837 of 2000 whereas in O.S.No.847 of 2010, the relief is with respect to Document Nos.1834 to 1836 of 2000 and 1838 of 2000. In O.S.No.597 of 2007, the relief is with respect to the Document No.1837 of 2000 whereas in O.S.No.847 of 2010, the relief is with respect to Document Nos.1834 to 1836 of 2000 and 1838 of 2000. The plaintiffs in O.S.No.597 of 2007 is not a party to the subsequent suit in O.S.No.847 of 2010. 7. To apply Section 10 of the Code of Civil Procedure, the following conditions should be satisfied. a. The matter in issue is directly and substantially in issue in the previously instituted suit. b. The suit should be between the same parties and the suit is pending in any other Court having jurisdiction Unless the above conditions are satisfied, Section 10 of the Code of Civil Procedure will not have applicability. 8. Admittedly, the property to the suits are not the same and the plaintiffs in the first suit is not a party to the second suit. Therefore, the decision in one suit must non-suit the other suit in deciding whether the matter in issue in both the suits are directly and substantially the same. 9. The learned counsel for the petitioner relied on AIR 1957 Calcutta page 727 (V 44 C 188 Dec.), wherein in para 34, it has been held as follows:- “It remains to refer to one other matter. The learned Judge has also given it as a reason for refusing to stay the suit before him under S.10 that there is an additional party in that suit. That, by itself, does not make S.10 inapplicable. It is true that the Section speaks of 'same parties', but it has been held that the 'same parties' mean 'the parties as between whom the matter substantially in issue has arisen and has to be decided'. Complete identity of either the subject-matter or the parties is not required. Authority for that proposition will be found in ILR 61 Cal 670: (AIR 1935 Cal 1) (B) (Six parties in one suit and five parties in another); and Wahid-un-Nessa Bibi v. Zamin Ali Shah, ILR 42 All 290: (AIR 1920 All 70) (K); ILR (1953) Bom 416: ( AIR 1953 Bom 117 ) (C); and Luxmi Bank Ltd V. Hari Kissan, ILR (1948) Nag 403: (AIR 1948 Nag 297) (L). The additional party impleaded in the Calcutta suit is the company Kapurchand Limited, to which the payments due to Modi under the agreements were to be made. The additional party impleaded in the Calcutta suit is the company Kapurchand Limited, to which the payments due to Modi under the agreements were to be made. No allegation is made against the company except that some money was paid to it and that it was a party to and knew of the misrepresentations made by Modi. I do not think that the joinder of Kapurchand Ltd., on such allegations raises any separate and substantial issue as between it and the Mansata so as to make S.10 inapplicable.” 10. In AIR 1997 Delhi 232 (M/s. ARJIES ALUMINIUM UDYOG Vs. SUDHIR BATRA, NEW DELHI), wherein in para 12, it has been held as follows:- “Section 10 of the CPC contemplates substantial identity of matter in issue in two suits. It is not the identity of main issue or all issues but the identity of matter in issue which is the determining test. The decision in one suit must non-suit the other suit - this must be the phraseology of answer, to win the question whether the matter in issue in the two suits is directly and substantially the same. A suit under Section 120 does not so answer the said question as to dictate stay of a suit complaining of infringement of trade mark instituted by a registered proprietor or registered user.” 11. The decisions cited above by the learned counsel for the petitioner are different from the facts of the present case and has got no applicability. The test that has to be applied is whether a judgment in one suit would operate as res judicata in the other or whether the plaintiff in O.S.No.597 of 2007 can get the relief in O.S.No.847 of 2010. 12. The plaintiff in O.S.No.597 of 2007 is not even a party in the other suit. While so, there has to be an independent decision for each of them. The issues may be tried in common but a decree will be a separable decree. In these circumstances, it is open to the petitioner to seek for joint trial of both the suits which would satisfy his requirements. Hence there is no merit in the C.R.P and the same deserves to be dismissed. 13. In the result, this Civil Revision Petition is dismissed, confirming the order made in I.A.No.25 of 2014 in O.S.No.847 of 2010 on the file of the IV Additional Sub-Judge, Trichy dated 23/2/2015. Hence there is no merit in the C.R.P and the same deserves to be dismissed. 13. In the result, this Civil Revision Petition is dismissed, confirming the order made in I.A.No.25 of 2014 in O.S.No.847 of 2010 on the file of the IV Additional Sub-Judge, Trichy dated 23/2/2015. No costs. Consequently, the connected Miscellaneous Petition is also dismissed.