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2016 DIGILAW 160 (CAL)

Jayanta Nandi v. Probir Nandy

2016-02-10

DEBI PROSAD DEY

body2016
JUDGMENT : Debi Prosad Dey, J. This application under Article 227 of the Constitution of India has been filed by the petitioner challenging the order dated 20th April, 2015 passed by learned Civil Judge, Junior Division 6th Court at Howrah in title suit no.210 of 2012 (subsequently renumbered as Title Suit no.9376 of 2014) wherein and where under learned Civil Judge, Junior Division, Howrah has rejected the application under Section 10 read with Section 151 of the Civil Procedure Code filed by the petitioner. 2. It would be relevant to mention in brief about the case of the parties to this proceeding in Order to appreciate as to if learned Court has failed to decide the application under Section 10 read with Section 151 of Civil Procedure Code in accordance with law. 3. The plaintiffs (herein-after referred to as opposite parties only)of title suit number 210 of 2012 have filed the suit under reference praying for a decree of eviction of the defendant (herein after referred to as petitioner only) from the property fully described in ‘B’ schedule of the plaint. The entire property has been described in ‘A’ schedule of the plaint and ‘B’ schedule property consists of one pucca room attached verandah with common bath and privy, being part and parcel of A schedule property (TS-210 of 2012). 4. The specific case of the opposite parties is that one Haladhar Nandy, since deceased is the exclusive and sixteen annas owner of ‘A’ schedule property. During his lifetime Haladhar Nandy transferred entire ‘A’ schedule property in favour of the opposite parties on the strength of a deed of gift executed on 20.02.2009 and thereby the opposite parties have acquired right, title, interest and possession of the entire ‘A’ schedule property. Duringhis lifetime, Haladhar Nandy himself had challenged the said deed of gift in the Civil Court at Howrah but the said Title Suit being no.35 of 2009 was dismissed on contest. Therefore, after the demise of Haladhar Nandy the opposite parties have become exclusive owner of ‘A’ schedule property. The present petitioner was inducted as licensee in one of the rooms of ‘A’ schedule property by Haladhar Nandy and such licence has automatically been terminated after the demise of Haladhar Nandy. Therefore, after the demise of Haladhar Nandy the opposite parties have become exclusive owner of ‘A’ schedule property. The present petitioner was inducted as licensee in one of the rooms of ‘A’ schedule property by Haladhar Nandy and such licence has automatically been terminated after the demise of Haladhar Nandy. However, the opposite parties gave some time to the present petitioner to vacate the ‘B’ schedule property but the present petitioner did not do so and accordingly this suit was filed for eviction of the present petitioner. The present petitioner along with other legal heirs of Haladhar have filed Title Suit no.166 of 2015 challenging the judgment and decree of Title Suit no. 35 of 2009 on the ground that such judgment and decree was collusive and the opposite parties did not acquire any interest in ‘A’ schedule property on the strength of the deed of gift said to have been executed by Haladhar Nandy since Haladhar Nandy was suffering from serious illness and he had no mental alertness to execute any such deed of gift in favour of the opposite party. 5. The petitioner has filed an application Under Section 10 read with Section 151 of the Civil Procedure Code before learned Civil Judge, Junior Division at Howrah with the prayer to stay Title Suit no.210 of 2012 till the final decision of Title Suit no. 166 of 2012. Learned trial Court after considering pros and cons of the claim of both the parties under reference has rejected the application under Section 10 read with Section 151 of Code of Civil Procedure. 6. Being aggrieved by and dissatisfied with such order dated 20th April, 2015 no. nil the petitioner has filed this application under Article 227 of the Constitution of India. 7. Learned senior Advocate Mr. Saptansu Basu appearing on behalf of the petitioner contended that the present petitioner has challenged the impugned deed of gift said to have been executed by Haladhar Nandy and the judgment and decree of Title Suit no.35 of 2009 and therefore the status of the present petitioner would be decided by the final decision of Title Suit no.166 of 2012. Learned senior Advocate Mr. Learned senior Advocate Mr. Saptansu Basu appearing on behalf of the petitioner further contended that the decision in Title Suit no.166 of 2012 with regard to the impugned deed of gift, whereby the present opposite parties are claiming title over the suit property, would definitely operate as res-judicata in deciding the validity and legality of the impugned deed of gift in TS-210 of 2012. In this backdrop, learned senior Advocate Mr. Basu has also advanced an alternative argument of consolidation of TS-210 of 2012 and TS-166 of 2012 relying on a decision reported in 2004 (3) SCC 85 (Chitivalasa Jute Mills vs. Jaypee Rewa Cement). 8. Learned Advocate Mr. Haradhan Banerjee appearing on behalf of the opposite parties contended that learned trial Court was perfectly justified in rejecting the said application under Section 10 read with Section 151 of CPC since the petitioner has simply challenged the validity of the judgment and decree of Title Suit no.35 of 2009 and did not even challenge the impugned deed of gift whereby the opposite parties have acquired right, title and interest over ‘A’ schedule property. 9. Mr. Banerjee further contended that Section 10 of CPC has had no application in the given facts and circumstances of both the cases and virtually the principle laid down by Hon’ble Apex Court as well as by our High Court would not come into play in deciding the application Under Section 10 CPC filed by the petitioner in TS-210 of 2012. 10. In TS-166 of 2012 the present petitioner along with other legal heirs of Haladhar Nandy has challenged the judgment and decree of Title Suit no.35 of 2009, which was actually filed by Haladhar Nandy and which was dismissed on contest. No appeal was preferred by Haladhar Nandy against the said judgment and decree during his lifetime. The locus of the present petitioner in challenging the said judgment is also questionable. 11. Learned trial Court correctly observed that the suit properties in both the suits are not same. 12. Secondly, the parties in both the suits are not same and identical. 13. Thirdly, the nature and character of both the suits are altogether different. 14. Thus learned trial Court rejected the application under Section 10 read with Section 151 of CPC of the present petitioner. 15. Learned Advocate Mr. Haradhan Banerjee referred the following decisions in support of his contention viz. 13. Thirdly, the nature and character of both the suits are altogether different. 14. Thus learned trial Court rejected the application under Section 10 read with Section 151 of CPC of the present petitioner. 15. Learned Advocate Mr. Haradhan Banerjee referred the following decisions in support of his contention viz. AIR 1970 SC 1468 (Khushro S. Gandhi and Ors vs. N.A. Guzder (dead) & ors.), AIR 1988 Cal 183 (J.C. Roy Chowdhury vs. M/s. Krishna Paper Board Mills & anr.), AIR 2005 SC 242 (National Institute of mental health & Neuro Schiences vs. Parameshwara) & AIR 1985 Cal 154 (Adhish Chandra Sinha vs. Hindusthan Gas & Industries Ltd. & anr.). 16. Justice Shyamal Kumar Sen sitting singly (in AIR 1988 Cal 183 , J.C. Roy Chowdhury vs. M/s. Krishna Paper Board Mills and anr.) has categorically decided that Section 10 read with Section 151 of CPC has had no application where the parties or the issues in earlier suit are not same in subsequent suit including the subject matter of the suit. His Lordship has also relied on a good number of decisions of our High Court. 17. Hon’ble Apex Court in AIR 2005 SC 242 (National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara) observed that 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 of CPC 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 previously instituted suit. The words “directly and substantially in issue” are used in contradiction to the words “incidentally or co-laterally 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. In a celebrated decision reported in AIR 1917 Cal 248 (Bipin Behary Mozumdar vs. Jogendra Chandra Ghosh & anr.) Sir Ashutosh Mukherjee pointed out that the matter in a suit “is not equivalent to any of the questions in a suit, it means the entire subject matter in controversy”. In a celebrated decision reported in AIR 1917 Cal 248 (Bipin Behary Mozumdar vs. Jogendra Chandra Ghosh & anr.) Sir Ashutosh Mukherjee pointed out that the matter in a suit “is not equivalent to any of the questions in a suit, it means the entire subject matter in controversy”. This proposition of law as enunciated by Sir Ashutosh Mukherjee has been consistently followed by our High Court the said principle of law has been reiterated by a Division Bench of our High Court in the decision reported in AIR 1985 Cal 154 (Adhish Chandra Sinha vs. Hindusthan Gas & Industries Ltd.& anr.). 18. It is therefore apparent from the facts and circumstances of the cases (TS166/2012 and TS-210/2012) that the matter in issue in both the suits is not directly and substantially identical. It may be that one of the issues regarding the validity of the impugned deed may be incidentally or co-laterally in issue in both the suits and accordingly learned trial Court was perfectly justified in rejecting the application under Section 10 read with Section 151 CPC holding inter-alia that the matter in issue in both the suits is not directly and substantially identical. 19. Learned senior Advocate Mr. Basu contended that both the suits may be consolidated. Mr. Basu in support of his contention has relied on decision reported in 2004(3) SCC 85 (Chitivalasa Jute Mills vs. Jaypee Rewa Cement) Per contra, Mr. Banerjee referred a decision reported in AIR 1970 SCC 1468 (Khushro S. Gandhi and ors. vs. N. A. Guzder (dead) and ors). Hon’ble Apex Court has specifically observed in the aforesaid decision that the High Court should not decide any other matter even if the parties conceded to such decision, while deciding another issue in revision. Moreover, it appears from the order impugned that the application for consolidation of both the suits under Section 151 of the Civil Procedure Code is pending before the learned trial Judge. 20. I would like to leave the matter to the discretion of learned trial Judge and such argument of Mr. Basu, being premature cannot be adhered to at this stage. 21. In the premise set forth above I have no hesitation to hold that this Court finds no reason to interfere with the order dated 20.04.2015 passed by learned Civil Judge, Junior Division, 6th Court at Howrah in title suit number 210 of 2012 (TS – 9376/2014). Basu, being premature cannot be adhered to at this stage. 21. In the premise set forth above I have no hesitation to hold that this Court finds no reason to interfere with the order dated 20.04.2015 passed by learned Civil Judge, Junior Division, 6th Court at Howrah in title suit number 210 of 2012 (TS – 9376/2014). 22. Accordingly, the application under Article 227 of the Constitution of India is dismissed. 23. No order as to costs.