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2017 DIGILAW 981 (CAL)

Supriya Roy v. Bijaya Bose

2017-12-14

SANJIB BANERJEE

body2017
JUDGMENT : SANJIB BANERJEE, J. 1. The grievance of the petitioners herein is that the further progress of their subsequent suit has been arrested on the ground that a prior suit was instituted by the opposite party in respect of the same premises. There is no doubt that the opposite party's suit, T.S. No. 1238 of 2011 was instituted prior to the petitioners' suit, T.S. No. 1881 of 2011. 2. The substance of the petitioning plaintiffs' claim in the plaint is that they have purchased the suit property from erstwhile owners Achinta Das and Ashim Nath Das and that the original defendants and, upon the death of one of them, the surviving defendant has no right in respect of the property in question. The claim is founded on the fact that the father of the opposite party, Paramesh, was the original tenant who died in 1986, then survived by widow Sandhyarani and the opposite party daughter. 3. By virtue of the definition of a tenant in the West Bengal Premises Tenancy Act, 1956, the heirs of the original tenant who ordinarily resided with the original tenant at the time of his death had to be regarded as tenants and, as such, till the Act of 1956 remained in operation till or about July, 2001, the original defendants may have had a right to continue in occupation of the suit premises. Upon section 2(g) of the West Bengal Premises Tenancy Act, 1997 coming into fact in or about July, 2001, the status of the heirs of the original tenant as tenants continued for a period of five years from the date of death of the original tenant or five years from the date of the 1997 Act coming into operation, whichever was later. 4. Accordingly, since Paramesh had died in 1986, by virtue of section 2(g) of the said Act of 1997 the original defendants could have been regarded as lawful tenants in respect of the suit premises for a period of five years after the Act of 1997 came into effect. After July, 2006, the heirs of the original tenant, the original defendants in the present suit, had to be regarded as persons with no authority to remain in occupation at the suit premises. This, in substance, is the claim of the petitioning plaintiffs in their suit. 5. After July, 2006, the heirs of the original tenant, the original defendants in the present suit, had to be regarded as persons with no authority to remain in occupation at the suit premises. This, in substance, is the claim of the petitioning plaintiffs in their suit. 5. The claim of the opposite party in her suit, which was instituted with her mother as a co-plaintiff, was that the plaintiffs therein were tenants in respect of the suit premises by virtue of such plaintiffs being heirs of the original tenant. The plaint pertaining to the earlier suit filed by the opposite party and her mother impleaded the original owners, Achinta Das and Ashim Nath Das, and also claimed that the petitioners herein had no right, title and interest in respect of the suit premises and ought to vacate a portion of the suit premises in the occupation of the present petitioners. The gamut of the earlier suit was larger than the scope of the subsequent suit. 6. Section 10 of the Code issues a command to a Court to not proceed with the trial of a subsequent suit if the matters in issue in such subsequent suit are directly and substantially in issue in a previous suit. That would imply that if all the matters which are in issue in a subsequent suit are also directly and substantially in issue in a previous suit, the trial of the subsequent suit would have to be stayed. Section 10, on the face of it, does not make any room for any delay in the application under such provision being filed; there is a simple command that the trial of the subsequent suit will be stayed. 7. It is possible that all the matters in issue in the two suits do not overlap. If all the matters in issue in the earlier suit do not cover the matters directly and substantially in issue in the later suit, the trial of the later suit may not be stayed under section 10 of the Code. It is also possible that if the more comprehensive suit is the later suit and the matters in issue therein are also directly and substantially in issue in the previous suit, the inherent power of the Court may be invoked under section 151 of the Code for arresting the trial of the earlier suit till the conclusion of the later suit. 8. Section 10 of the Code, like section 11 thereof and several others like provisions, is founded on public policy. The principle is that the same issue must not be decided twice over. In a way, it may also be seen that a person should not be vexed with the same cause a second time. Needless Court time would be wasted if the same issues were to be decided all over again and there is also a possibility of a conflict of decisions. Such are the underlying principles governing section 10 of the Code. 9. Ordinarily, it is expected that a suit which has been filed earlier in point of time progresses to trial before a suit which has been instituted at a later point of time. However, it is not necessary that the earlier suit will ripen for trial before the later suit. It is possible that an earlier suit remains in the service stage without even the summons having been served, while the later suit progresses to trial. It is possible that the earlier suit has been filed only to thwart an expeditious decision on the issue and, thereby, prejudice the person likely to succeed in such regard. At the time that the Code was written, the mischievous practices that are now in vogue may not have been within the contemplation of its architects. 10. The primary element of public policy that has to be discerned from section 10 of the Code is that if an action covers all the issues involved in another action, the two actions should not be taken up for trial at different times since a decision on the more comprehensive of them may render the other action nugatory. If such is the underlying principle of section 10 of the Code and it prevents Court time being wasted on the possible re-agitation of a dispute that has already been pronounced upon, the primary considerations that ought to weigh with the Court in seisin of an application under section 10 of the Code are: which of the two suits is the more comprehensive and which of the two suits has progressed more. If the more comprehensive but later suit has progressed to trial or towards its conclusion much more than the earlier suit, merely because the word "previously" is used in section 10 of the Code, should not discourage the Court in arresting the previous suit and proceeding expeditiously to conclude the suit that has progressed more. 11. If, however, the later suit has progressed much more than the earlier suit but the later suit is not as comprehensive as the earlier suit, there is an element of judicial discretion that has to be used by the Court in seisin of an application under section 10 of the Code. The considerations that should weigh with the Court in such a situation are, inter alia, the actual stages of the two suits and the extent of the similarity of the issues involved therein. Another consideration would be if the plaintiffs in the previous suit have not taken appropriate stops for its prosecution, whether the plaintiffs in a subsequent suit who have no carriage of proceedings qua the previous suit should be made to suffer therefor. 12. At any rate, if some of the issues involved in the previous suit are decided in course of the subsequent suit which has progressed towards its conclusion at a faster pace, the principle of the issue estoppel may still apply when the previous but more comprehensive suit comes up for trial. 13. In the present case, the previous suit has not progressed beyond the service stage. The subsequent suit filed by the petitioners herein has meandered through the evidence stage and is parked at the stage of arguments. It is after the evidence was closed that the opposite party, the surviving plaintiff in the previous suit, applied for the stay of the trial of the present suit. In such a situation, the Trial Court ought not to have allowed the belated application for the stay of the subsequent suit when the opposite party had virtually taken no steps to prosecute her suit of 2011 till 2017. 14. For the reasons aforesaid, the order impugned dated May 24, 2017 is set aside and the trial Court is requested to expeditiously dispose of T.S. No. 1881 of 2011. CO 2369 of 2017 is disposed of, but without any order as to costs.