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2017 DIGILAW 28 (CAL)

Swapan Routh v. Narendranath Manna

2017-01-06

ASHA ARORA

body2017
JUDGMENT : Asha Arora, J. 1. This revisional application at the instance of the plaintiff/petitioner is directed against an order dated February 15, 2007 passed by the learned Civil Judge (Senior Division), Jhargram in Title Suit No. 1 of 2001 whereby an application under section 10 of the Code of Civil Procedure filed by the defendant nos. 4 to 6 seeking stay of the aforesaid suit till the disposal of First Appeal being F.A No. 2 of 2003 was allowed. 2. The backdrop of the matter may be synopsized as follows: The plaintiff/petitioner previously filed a suit for partition being Title Suit No. 49 of 1994 against the opposite parties/defendants in respect of the same property which was dismissed on contest by the trial court with the following observation: “So, it appears that defendants failed to discharge the onus of proving that plaintiff understood the contents of the deeds and there was independent legal advice to her. But even if this fact remains unproved by defendants, plaintiff cannot get the decree as prayed for, because, there is no prayer for declaration of the two deeds as null and void. This court can not award a decree for partition keeping aside the other relief on which the relief sought for is contingent. In the circumstances, I am of the opinion that the suit fails.” Pursuant to the dismissal of Title Suit No. 49 of 1994 the plaintiff filed another suit being Title Suit No. 1 of 2001 seeking the following reliefs: “(a) For a preliminary decree of partition of her 27/80 share in the property described in the schedule below; (b) for final decree of partition by appointing Advocate-commissioner; (c) for declaration that the deeds described in Schedules-‘B’ and ‘C’ of the plaint are null and void and the same are not binding on the plaintiff and also for cancellation of the decree of the said suit; (d) for costs and for other legal and equitable reliefs”. After the second suit was filed by the plaintiff, the defendants/opposite parties preferred an appeal against the observation of the trial court in the judgement rendered in Title Suit No. 49 of 1994. The said appeal being F.A No. 2 of 2003 is pending before a Division Bench of this Court. On the basis of an application under section 10 CPC filed by the defendant nos. The said appeal being F.A No. 2 of 2003 is pending before a Division Bench of this Court. On the basis of an application under section 10 CPC filed by the defendant nos. 4 to 6 the trial court stayed the subsequent suit being Title Suit No. 1 of 2001. 3. Relying upon the case of Aspi Jal and Another Versus Khushroo Rustom Dadyburjor reported in AIR 2013 Supreme Court 1712 and the decision reported in AIR 2005 Supreme Court 242 in the case of National Institute of Mental Health & Neuro Sciences Versus C. Parameshwara, learned counsel for the petitioner strenuously argued that the matter in issue in the subsequent suit was not directly and substantially in issue in the previous suit. Leading this Court through the plaint of Title Suit No. 49 of 1994 and the judgement of the trial court in the aforesaid suit, Mr. Bhakat submitted that though the alleged sale deeds have been assailed as false and fabricated in paragraph 8 of the plaint of the earlier suit, the matter not being in issue in the said suit did not fall for consideration before the trial court. Further contention on behalf of the petitioner is that no relief was sought or granted in respect of the alleged deeds and the observation made by the trial Court regarding the matter is merely obiter dictum which is not binding. Therefore the provision of section 10 of the Code of Civil Procedure is not applicable to the facts of the case. 4. Mr. Mahato, learned counsel for the opposite parties countered that the subject matter in controversy in both the suits is directly and substantially identical so section 10 CPC has rightly been invoked. Referring to a judgement of this Court reported in (2010)4 CHN 909 (Cal) in the case of Amrita Bazar Patrika Private Ltd. Versus Jayanta Sengupta and others, learned counsel for the opposite parties submitted that for applying the provisions of section 10 of the Code of Civil Procedure it is not necessary that the reliefs claimed in both the suits should be identical. Even if the reliefs sought are different, the subsequent suit should be stayed if the subject matter in dispute is the same. Even if the reliefs sought are different, the subsequent suit should be stayed if the subject matter in dispute is the same. It has further been contended that the observation of the trial court at page 13 of the judgement is required to be tested in appeal and the decision of the appellate court would operate as res judicata in the subsequent suit which has, according to Mr. Mahato, rightly been stayed by the trial court. 5. It is not in dispute that the appeal was filed by the defendants/opposite parties after the institution of the subsequent suit. It is on record that in the earlier suit for partition no relief was claimed in respect of the impugned sale deeds. In paragraph 8 of the plaint of the earlier suit the sale deeds in question have been assailed as false and fabricated but the trial court was not required to decide the issue relating to the alleged sale deeds in the said suit which was for partition simpliciter. Learned counsel for the petitioner rightly pointed out that the dispute relating to the two sale deeds was not the subject matter for adjudication in the earlier suit. Therefore there was no decision thereon by the trial court. The fundamental test to apply Section 10 CPC is whether the final decision in the previous suit would operate as res judicata in the subsequent suit. In the earlier suit though the alleged deeds were challenged as false and fabricated, no issue was raised regarding the matter and no relief was claimed in respect thereof. The matter was therefore not adjudicated upon. In this context it is significant to refer to the observation of the trial court at page 13 of the judgment which is reproduced hereunder: “In the present case, I do not find any evidence to show that plaintiff understood the contents of the deed. Also there is discrepancy in the payment of consideration money. Defendant no. 1 in his oral testimony has stated that plaintiff took active part in making the deeds. On the other hand, plaintiff stated that the defendant no. 1 took active part. It appears from the written statement of defendant no. 1 that plaintiff gave him Rs. 80,000/- as consideration money. However, other witnesses on behalf of the defendants have stated that there was a baina prior to the sale and for two deeds Rs. On the other hand, plaintiff stated that the defendant no. 1 took active part. It appears from the written statement of defendant no. 1 that plaintiff gave him Rs. 80,000/- as consideration money. However, other witnesses on behalf of the defendants have stated that there was a baina prior to the sale and for two deeds Rs. 60,000/- baina money was paid in advance. This fact has been contradicted by defendant no. 1 in his oral testimony. So, it appears that defendants failed to discharge the onus of proving that plaintiff understood the contents of the deeds and there was independent legal advice to her.” Evidently, it was not a decision regarding the controversy but merely an incidental observation. The key words in Section 10 are “the matter in issue is directly and substantially in issue in a previously 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 suits is identical. There is no substance in the argument on behalf of the opposite parties that the decision in the appeal regarding the impugned observation of the trial court would operate as res judicata in the subsequent suit. Reference to the decision reported in (2010)4 CHN 909 (Cal) (supra) is of no assistance to the opposite parties since the judgment relied upon is clearly distinguishable on facts from our present case wherein the trial court, in deciding the earlier suit was not required to adjudicate whether the two sale deeds in question were null and void. There is therefore no merit in the submission that the appellate court will adjudicate the matter which the trial court was not called upon to decide. 6. Pursuant to the foregoing discussion I am of the view that Section 10 of the Code of Civil Procedure has no application to the facts and circumstances of the present case. 7. Consequently the revisional application is allowed and the impugned order dated February 15, 2007 is set aside. 8. No order as to costs. 9. 6. Pursuant to the foregoing discussion I am of the view that Section 10 of the Code of Civil Procedure has no application to the facts and circumstances of the present case. 7. Consequently the revisional application is allowed and the impugned order dated February 15, 2007 is set aside. 8. No order as to costs. 9. The trial Court shall expedite the hearing of Title Suit No. 1 of 2001 without granting unnecessary adjournment to either of the parties and dispose of the same in accordance with law as early as possible.