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2016 DIGILAW 100 (ORI)

GAJENDRA NATH BISWAL v. NARMADA BISWAL

2016-02-03

A.K.RATH

body2016
JUDGMENT : Dr. A.K. Rath, J. - In this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 14.10.2004 passed by the learned Addl. District Judge, FTC-2, Cuttack, in T.S. No.330 of 1999 whereby and where under the application filed by the petitioner under Section 10 CPC to stay the further proceeding of the suit till disposal of RFA No.13 of 2002 arising out of T.S No.550 of 1996 pending before this Court has been dismissed. 2. Opposite party no.1 as plaintiff instituted T.S. No.550 of 1996 in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack impleading the petitioner and others as defendants praying, inter alia, for recovery of possession of suit schedule property along with the building standing thereon and for a direction to the defendant no.1 to furnish accounts in connection with the business and management of "Hotel Roxy" and "Roxy Hotel". The suit was dismissed. Thereafter, she filed RFA No.13 of 2002 before this Court, which is pending adjudication. During pendency of the aforesaid suit, opposite party no.1 instituted T.S. No.330 of 1999 impleading the petitioner and others as defendants in the same court with a prayer to set aside the compromise order and decree dated 14.10.1988 and 4.1.1991 respectively passed in T.S. No.677 of 1987 and for a declaration that the R.S.D. No.3546 dated 19.4.1980 is void and the suit schedule property as the property of the firm as per partnership deed dated 25.8.1976. The said suit was subsequently transferred to the court of learned Addl. District Judge, FTC-2, Cuttack. An alternative prayer has been made to pass a decree directing the defendants to execute the deed of transfer of suit schedule property in favour of the partnership firm constituted under the deed of partnership dated 25.8.1976. Pursuant to issuance of summons, the petitioner, who was defendant no.1, entered appearance and filed a comprehensive written statement denying the assertions made in the plaint. 3. While the matter stood thus, the petitioner filed an application under Section 10 CPC to stay further proceeding of T.S. No.330 of 1999 till disposal of RFA No.13 of 2002 pending before this Court. It is stated that the issues involved in T.S.No.330 of 1999 and T.S. No.550 of 1996 are directly and substantially the same inasmuch as the parties in both the suits are same. It is stated that the issues involved in T.S.No.330 of 1999 and T.S. No.550 of 1996 are directly and substantially the same inasmuch as the parties in both the suits are same. Opposite party no.1 filed an objection to the same. By order dated 14.10.2004, learned trial court came to hold that in both the suits, Plot No.1041 is common. Plot Nos.1041 and 1042 are vast areas. Out of the same, plaintiff purchased an area of Ac.0.02 dec. from Plot No.1041 and Ac.0.116 dec. from Plot No.1042. Thus the properties in both the suits are different. It was further held that the prayer in both the suits is different. Held so, the learned trial court rejected the petition. 4. Heard Mr. P.R. Barik, learned counsel for the petitioner and Mr. Soumya Mishra on behalf of Mr. S.P. Mishra, learned Senior Advocate for the opposite party no.1. 5. Mr. Barik, learned counsel for the petitioner, submitted that the issues in both the suit are directly and substantially the same. In both the suits, parties are also same. In order to prevent adjudication of two parallel suits in respect of the same cause of action as there is every likelihood of conflicting findings, the further proceeding in T.S. No.330 of 1999 should be stayed till disposal of RFA No.13 of 2002. He relied on the decisions of the Patna High Court in the cases of Fulchand Motilal v. Manhar Lall, AIR 1973 Patna 196 and Sriram Tiwari and another v. Bholi Devi and another, AIR 1994 Patna 76, the decision of this Court in the case of Shri Durga Charan Routray v. Narasingh Charan Das, 69 (1990) CLT 163, the decision of the Allahabad High Court in the case of Wahidunnissa Bibi v. Zamin Ali Shah and others, AIR 1920 Allahabad 70 and the decision of the apex Court in the case of Pukhraj D. Jain and others v. G. Gopalakrishna, AIR 2004 SC 3504 . 6. Per contra Mr. Mishra, learned counsel for the opposite party no.1, submitted that the issue in both the suits are completely distinct and different; so also the prayer. There is no chance of conflicting decisions nor the decision in T.S. No.550 of 1996 will operate as res judicata. In view of the same, learned trial court has rightly rejected the application filed by the defendant no.1. There is no chance of conflicting decisions nor the decision in T.S. No.550 of 1996 will operate as res judicata. In view of the same, learned trial court has rightly rejected the application filed by the defendant no.1. In support of his contention, he cited the decisions of this Court in the cases of Shri Durga Charan Routray v. Narasingh Charan Das 69 (1990) CLT 163 and Dr. Guru Prasad Mohanty and others v. Bijoy Kumar Das, AIR 1984 Orissa 209 and the decision of the apex Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, AIR 2005 SC 242 . 7. On a conspectus of Section 10 CPC, it is evident that the provision is mandatory. In the event the conditions laid down in the section are satisfied, the court has no option but to stay the further proceedings of the second suit. It is, however, not necessary for the applicability of the section that all the issues in the previously instituted suit must also be the issue in the subsequently instituted suit, nor it is essential that the reliefs claimed in both the suits should be identical. 8. In Durga Charan Routray (supra), this Court in para-6 of the report held as follows : "6. The ingredients of section 10 of the Code are as follows : (a) The matter/matters in issue should be substantially the same in the two suits; (b) The previously instituted suit should be pending in the same Court in which the subsequent suit is brought or in another court in India having jurisdiction to grant the relief claimed; and (c) The two suits should be between the same parties or their representatives and these parties should be litigating in the two suits under the same title;" 9. In National Institute of Mental Health & Neuro Sciences (supra), the apex Court in para-8 of the report has held as follows : "8. The object underlying section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The object underlying section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical." 10. The aforesaid view is echoed in the decisions cited by Mr. Barik, learned counsel for the petitioner. 11. Entia non sunt multiplicanda sine necessitate (Things should not be multiplied without necessity) is a well known principle in the administration of justice. In view of the same, this Court has not multiplied the authorities since the ratio in all the decisions is same. 12. Parties in both the suits are same. The suit schedule properties in both the suits are identical. The issues in both the suits are same and almost identical. Be it noted that the main issue in both the suits is with regard to suit property, i.e., where the same was bought from the joint family income. There is identity in matter in issue in both the suits inasmuch as the subject-matter of both the suits is same. In view of the same, learned trial court has committed a patent error of law in rejecting the application of the defendant no.1 to stay further proceeding of the suit. There is identity in matter in issue in both the suits inasmuch as the subject-matter of both the suits is same. In view of the same, learned trial court has committed a patent error of law in rejecting the application of the defendant no.1 to stay further proceeding of the suit. If the order is allowed to stand, the same would cause miscarriage of justice. 13. Accordingly, the order dated 14.10.2004 passed by the learned Addl. District Judge, FTC-2, Cuttack, in T.S. No.330 of 1999 is quashed. The application filed by the defendant no.1 is allowed. Further proceeding of T.S. No.330 of 1999 shall remain stayed till disposal of RFA No.13 of 2002 pending before this Court. The petition is allowed. Final Result : Allowed