Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 1152 (MP)

Vinod Chand v. Jyoti Singh

2016-12-15

SANJAY YADAV

body2016
ORDER 1. With consent of learned counsel for the parties, the matter is finally heard. 2. Defendants take exception to order dated 26.10.2015; whereby, the trial Court in a suit for declaration and permanent Prohibitory injunction has dismissed their application under sections 10, 151 and Order 7 rule 11 of the Code of Civil Procedure, 1908. 3. Suit in question by respondent No.1/Plaintiff is for declaration of title and permanent Prohibitory injunction in respect of property bearing Khasra No.23/9 area 4.53 acre situated at Barudghat, Patwari Halka Kapasi, Revenue Circle and Tahsil Rahatgaon, District Harda. The suit is evidently filed on 26.8.2012. 4. The present petitioners who are defendants raised objection as to maintainability of suit and sought stay of proceedings vide application under section 10 of CPC that in respect of property in question the defendants (i.e. the petitioners) have already preferred a suit for declaration and permanent injunction on 21.12.2010 which is pending consideration in the Court of District and Sessions Judge, Harda between the same parties. 5. The trial Court rejected the application on the finding that besides the suit property, there are other properties also which are subject matter of the earlier suit. The exposition, however, when tested on the anvil of the provisions contained under section 10 of CPC cannot be approved of section 10 of CPC categorically mandates that 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 party. The word 'directly and substantially', as noticed by the Supreme Court in National Institute of Mental Health and Neuro Sciences v. C.Parameshwara [ (2005)2 SCC 256 ], are used in contra-distinction of the words “incidentally or collaterally”. Their Lordships were pleased to observe : “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 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 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 contra-distinction 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.” 6. In the case at hand, the suit property is Khasra No.23/9 admeasuring 4.53 acre and the whole of this property is subject matter of previously instituted suit. 7. In view whereof, while setting aside the impugned order, application under section 10 of CPC is allowed. The proceedings, in Civil Suit No.69-A/2014 in the Court of Second Additional Judge to the Court of First Civil Judge Class-II, Harda is stayed till the final decision in Civil Suit No.37-A/2013 in the Court of District and Sessions Judge, Harda. The consideration of application under Order 7 rule 11 of CPC shall be subject to final outcome of the Suit No.37-A/2013. 8. The petition stands disposed of finally in above terms. No costs.