Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 156 (MP)

Balwant Singh v. Lakwinder Kaur

2018-02-06

VIVEK AGARWAL

body2018
JUDGMENT : Vivek Agarwal, J. 1. This writ petition under Article 227 of the Constitution of India has been filed challenging the order dated 10.7.2013 passed in Civil Suit No. 54-A/2013 by the District Judge, Shivpuri, whereby learned District Judge has rejected the application under Section 10 read with Section 151 CPC. 2. It is the case of the petitioner that petitioner, who is a defendant in Suit No. 54-A/2013, had filed a suit in the Court of District Judge, Shivpuri, which was registered as Civil Suit No. 123-A/2010. This suit was filed by the petitioner claiming relief of declaration of sale-deed dated 2.12.2010 as null and void and for permanent injunction against the defendants [Lakhbinder Kaur (plaintiff in present suit), Gurulal Singh and State of M.P.] not to interfere in the peaceful possession of the petitioner. The brief facts of that case are that petitioner Balwant Singh had executed sale-deed on 2.12.2010 to sell his land measuring 3.08 hectares at village Kakarwaya and defendants Lakhvinder and Gurulal Singh out of total sale consideration of Rs. 16,17,000/- had paid Rs. 2,87,000/- in cash and Rs. 13,30,000/- through account payee cheque No. 418044. This cheque was dishonoured and in this backdrop suit was filed for cancellation of the sale-deed and permanent injunction. 3. Learned trial Court vide judgment and decree dated 5.3.2013 partly decreed the suit and held that defendants shall not be entitled to take possession of the suit land without paying remaining sale consideration of Rs. 13,30,000/-. 4. Petitioner has filed a first appeal against the said judgment and decree which has been registered as FA No. 115/13 in which vide order dated 9.10.13 order dated 28.6.13 in regard to stay of operation of the impugned decree was confirmed. It was observed that this order shall not affect the other proceedings and the Courts are at liberty to decide the said proceedings in accordance with law. 5. After judgment and decree dated 5.3.2013 defendant No. 1 (plaintiff herein) filed a suit for reclaiming the possession and permanent injunction in regard to the same land measuring 3.08 hectares at village Kakarwaya. 5. After judgment and decree dated 5.3.2013 defendant No. 1 (plaintiff herein) filed a suit for reclaiming the possession and permanent injunction in regard to the same land measuring 3.08 hectares at village Kakarwaya. In this suit, the present petitioner had filed an application under Section 10 CPC which has been enclosed herewith as Annexure P/4 requesting the Court of District Judge, Shivpuri, to stay the proceedings in subsequent suit namely 54/2013 on the ground that first appeal has been filed before the High Court which is pending, and therefore, judgment and decree passed in civil suit No. 123-A/2010 dated 5.3.2013 has merged in the first appeal of the High Court and unless and until first appeal, which is a continuing process of the suit, is decided, proceedings in the present suit i.e. 54/13 be kept in abeyance. A reply to this application was furnished by the plaintiff as is contained in Annexure P/5 raising objection about the contentions regarding filing of appeal before the High Court by disputing the same and mentioning that if any appeal would have been filed then copy of appeal memo would have been enclosed so also copy of the orders passed by the High Court. It was also submitted that plaintiff has already filed a caveat and if appeal would have been filed, then his counsel would have been informed about such appeal, but since she is not having any intimation about such appeal, therefore, factum of filing of appeal is incorrect. Based on such submission, plaintiff prayed for dismissal of application under Section 10 read with Section 151 CPC. 6. Trial Court after considering the rival contentions, has held that application under Section 10 CPC is not maintainable inasmuch as subject matter of the present suit is different from the earlier suit. Learned District Judge also admitted that as far as appeal before the High Court is concerned, its decision will have bearing on the suit in progress, but till appeal is accepted no adverse impact can be said to be made, and therefore, mere filing of the appeal in the earlier suit will not be sufficient to allow application under Section 10 read with Section 151 CPC. 7. 7. Learned counsel for the petitioner has placed reliance on the judgment of this Court in the case of Poonamchand vs. Murti Madanmohanji and Others, 2007 (3) MPLJ 340 , wherein the High Court was pleased to hold that for applicability of Section 10 to grant stay of suit, there needs to be common identity about the subject matter, parties to the litigation and jurisdiction. Placing reliance on such judgment of the High Court, learned counsel for the petitioner submits that learned District Judge has erred in not appreciating the fact that subject matter of the litigation was same as was in the previous litigation, and therefore, has wrongly dismissed the application under Section 10 read with Section 151 CPC. 8. Learned counsel for the respondent on the other hand has placed reliance on the judgment of this Court in the case of Dayawantibai W/o Tulsiram Lodhi vs. Smt. Sarula Bai and Others, 2006 (4) MPLJ 346 wherein it has been held that if sale-deed is registered and there is endorsement of Sub-Registrar that consideration is paid, it will be presumed that consideration was paid to the vendor. Placing reliance on the provisions contained in Section 54 of the Transfer of Property Act, it has been held that sale is a transfer of ownership in exchange for a price paid or promised or part paid and part promised. The delivery of possession is also an essential ingredient in this section. It is submitted that since part price has been paid, therefore, sale will be deemed to be complete and first appeal will not have any bearing on the present suit. Similarly reliance has been placed on the judgment of the Supreme Court in the case of Guru Granth Saheb Sthan Meerghat Vanaras vs. Ved Prakash and Others, (2013) 7 SCC 622 para 15 wherein placing reliance on Section 42 of the Evidence Act in regard to relevancy and effect of judgments, orders or decrees, other than those mentioned in Section 41, it has been held that judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. In the light of such provisions contained in the Evidence Act, it is further submitted that High Court in first appeal while confirming the stay observed that this order shall not affect the other proceedings and therefore, the meaning and import of such order is that subsequent suit can go on. 9. After hearing the arguments and appreciating the material on record, this Court is of the opinion that as far as Section 10 of CPC is concerned, it clearly provides 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 parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. The scope of Section 10 is to enforce the policy of the law to confine the plaintiff to one litigation. Thus, obviating the possibility of contradictory verdicts by two or more Courts in respect of the same relief. As far as appeal is concerned, appeal is only a continuation of the suit and is included in the word suit. 10. In the above backdrop if the first appeal succeeds, then it will be frustrated if the subsequent suit which is pending before the District Judge is allowed to be continued and if it is decreed, there will be conflict and that conflict can best be resolved only when the proceedings in subsequent suit are stayed in terms of the spirit and intention of the legislature as is reflected from the provisions contained in Section 10 of CPC. 11. As far as the finding of the trial Court that subject matter of two its is not same is concerned, same is perverse because if subject after is not same, then trial Court was not required to observe that decision in the first appeal will have bearing on the present suit. 11. As far as the finding of the trial Court that subject matter of two its is not same is concerned, same is perverse because if subject after is not same, then trial Court was not required to observe that decision in the first appeal will have bearing on the present suit. This is a contradiction apparent on the face of record, therefore, in the light of the law laid down in the case of Poonamchand (supra) since the subject matter of present suit has a common identity with the subject matter of earlier suit, so also parties to the litigation, it cannot be said that subsequent suit is not on the same subject matter. 12. As far as law laid down in the case of Dayawantibai (supra) is concerned, besides part payment and part promise, another ingredient of Section 54 of the Transfer of Property Act has been held to be delivery of possession. Admittedly, there is no delivery of possession in the present case. Secondly, the analogy of part paid and part promised will also not be attracted inasmuch as dishonour of cheque is not part of promise, rather it is an act of breach of trust, therefore, the ratio in the case of Dayawantibai (supra) is distinguishable and is not applicable to the facts and circumstances of the case. Similarly, ratio in the case of Guru Granth Saheb Sthan Meerghat Vanaras (supra) is that if there is simultaneous prosecution of criminal and civil proceedings against same persons pertaining to the same cause, then under what circumstances stay of civil proceeding can be directed. The subject mater of that case is whether there is a hard and fast rule that simultaneous prosecution of criminal and civil proceeding will embarrass or prejudice the accused or that invariably proceedings should be stayed until disposal of criminal case. In this backdrop, provisions of Section 42 of the Evidence Act have been discussed and law has been laid down. In the present case, facts are different. The subject matter of the earlier suit was whether dishonour of cheque constituting substantially large portion of consideration will vitiate the sale-deed and whether the plaintiff is entitled to get a declaration that the sale-deed is void inasmuch as the contract in absence of honouring of the cheque i.e. payment of the consideration could or could not have impact of completion of transaction. In the case of Dayawantibai (supra) aspect of part payment and part promised has been discussed but not the consequences of dishonour of cheque which means that there was lack of consideration at the time of execution of contract and what will be impact of absence of consideration on the contract is the issue involved in the matter, therefore, the subsequent suit if is allowed to be continued, it will amount to execution of earlier judgment and decree that will render the appeal as infructuous and also an academic exercise in vacuum that is not the intention of the legislature and as has been mentioned above the object of Section 10 is to confine the plaintiff to one litigation, thus obviating the possibility of contradictory verdicts by two or more Courts in respect of the same relief. 13. Since the relief in the subsequent suit is consequential and dependent on the outcome of the first suit in regard to which first appeal is pending, this Court is of the opinion that trial Court has erred in dismissing the application under Section 10 read with Section 151 CPC. Thus, the petition succeeds and is allowed. Impugned order is set aside. Application under Section 10 read with Section 151 CPC is allowed. It is directed that proceeding in the Civil Suit No. 54-A/2013 shall remain stayed during the pendency of First Appeal No. 115/13. However, liberty is reserved in favour of the respondents to seek early hearing in F.A. No. 115/13.