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2018 DIGILAW 192 (ALL)

RAJENDRA PRASAD v. KOMAL DEVI

2018-01-23

MANOJ KUMAR GUPTA

body2018
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—Heard Sri Udayan Nandan, learned counsel for the petitioner and Sri M.D. Singh Shekhar, learned senior advocate assisted by Sri Vaibhav Goswami on behalf of respondents 1, 2 and 3, the main contesting parties. 2. By means of instant petition, the petitioner has challenged the order dated 16.7.2016 passed by trial Court deciding issue Nos. 5 and 8 in Original Suit No. 114 of 2012 and the order dated 1.9.2017 passed by Additional District & Sessions Judge, Kushi Nagar dismissing Civil Revision No. 18 of 2016. Issue No. 5 was framed on the pleading of the defendant/respondents 1, 2 and 3 to the effect that the suit was liable to be stayed under Section 10 CPC in view of pendency of an earlier suit between the parties being Original Suit No. 491 of 2009. The trial Court has decided the said issue against the plaintiff/petitioner and in favour of the defendant/respondents 1, 2 and 3 being of the opinion that the subsequent suit No. 114 of 2012 deserves to be stayed in view of pendency of the earlier suit. 3. The impugned order has been challenged by the petitioner primarily on the ground that the issues involved in the previous suit i.e., Original Suit No. 491 of 2009 are entirely different and distinct from that in the instant suit. It is urged that Section 10 CPC will have no application to the facts of the instant case. 4. Learned counsel for the petitioner pointed out that by order of this Court dated 25.9.2014 in Civil Revision No. 407 of 2014, the application filed by the petitioner under Order 4-A CPC was allowed and both the suits were consolidated together. It is urged that the impugned order staying the proceedings of the instant suit is in the teeth of the order dated 25.9.2014 passed in Civil Revision No. 407 of 2014 by this Court. 5. Per contra, Sri M.D. Singh Shekhar, learned counsel appearing on behalf of respondents 1, 2 and 3 submitted that the previous suit, though instituted by the mother, wife and son of the present petitioner, was also for the benefit of the petitioner, who was arrayed as defendant/second set. He further points out that the suit property is the same and even the relief claimed in both the suits, i.e. for cancellation of the sale-deed dated 23.9.2009, is also same. He further points out that the suit property is the same and even the relief claimed in both the suits, i.e. for cancellation of the sale-deed dated 23.9.2009, is also same. He further submitted that the order consolidating the two suits under Order 4-A would in no manner be an impediment in the way of the trial Court in staying the proceedings of the subsequently instituted suit under Section 10 CPC. 6. I have considered the submissions made by learned counsel for the parties and perused the material on record. 7. One of the main ingredient of Section 10 CPC is that the matter in issue in subsequently instituted suit should be directly and substantially in issue in the previously instituted suit. Thus, it has to be seen as to whether the matter in issue in the two suits is directly and substantially the same or not. 8. Original Suit No. 491 of 2009 was instituted for cancellation of sale-deed dated 23.9.2009 executed by the petitioner in favour of respondents 1, 2 and 3. The main ground of challenge to the sale-deed was that the petitioner had sold property in excess of his share. The case of the plaintiffs was that the suit property originally belonged to Salig Ram, which was partitioned between his two sons, Vishwanath and Ram Narayan alias Munna. The suit property had fallen to the share of Vishwanath. Vishwanath is the father of the petitioner. The petitioner had only 1/25 share in the suit property whereas he has transferred the entire property by sale-deed impugned in the suit in favour of respondents 1, 2 and 3 and thus, it is not binding on the plaintiffs, nor even on the petitioner. Thus the main issue in the suit is whether the petitioner, who is defendant/second set in the said suit is exclusive owner of the entire property which was subject-matter of the sale-deed dated 23.9.2009 or it was executed by him in excess of his share and thus not binding on the parties. 9. It seems that the petitioner after gaining knowledge of institution of the previous suit, alongwith the written statement, also filed a counter claim, alleging that the sale-deed in question is based on fraud, thus deserves to be cancelled. 9. It seems that the petitioner after gaining knowledge of institution of the previous suit, alongwith the written statement, also filed a counter claim, alleging that the sale-deed in question is based on fraud, thus deserves to be cancelled. However, the counter claim was not accepted by the trial Court on the ground that it was directed against co-defendants and not against the plaintiffs, which is not permissible. Thereafter, the petitioner instituted a separate suit i.e., the instant suit, wherein the relief claimed is also for cancellation of the same sale-deed dated 23.9.2009. In the plaint, although the petitioner has to some extent accepted the case set up by the plaintiffs of Original Suit No. 491 of 2009 to the effect that he was not exclusive owner of the suit property but the cancellation of the sale-deed has been sought on the ground that it was obtained by playing fraud. It is alleged that under the pretext of getting a rent agreement executed, respondents 1, 2 and 3 have succeeded in procuring the impugned sale-deed. He further alleged that he had not received any sale consideration and thus, according to the petitioner, the sale-deed impugned in the suit was also without any consideration. Having regard to the pleadings of the instant suit, it is evident that the issue which is to be decided therein, is whether the impugned sale-deed is a result of fraud or not and whether any sale consideration had passed to the petitioner or not. While on the other hand, the issue in the previously instituted suit is whether the sale-deed executed by the petitioner was in excess of his share or not and whether on basis of such plea, the plaintiffs could seek cancellation of the sale-deed, as a whole, or not. The ground of fraud, on which sale-deed is sought to be avoided by the petitioner in the instant suit, could not be examined in the earlier suit, the petitioner not being plaintiff therein, though the plaintiffs of that suit have claimed relief also in his favour. 10. In the considered opinion of the Court, the matter in issue in the earlier suit is not directly and substantially in issue in the instant suit. 10. In the considered opinion of the Court, the matter in issue in the earlier suit is not directly and substantially in issue in the instant suit. 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 so as to avoid conflicting findings being recorded. 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 or not. The decision in the previous suit as to whether the petitioner was competent to execute sale-deed in respect of the entire suit property or not, would in no manner operate as res judicata in the instant suit, as the issues, as discussed above, are entirely different. Identity of relief, nor identity of the property would make Section 10 applicable, as misunderstood by the Courts below. They have acted in excess of their jurisdiction in staying the proceedings of the suit, by applying Section 10 CPC. 11. It is not disputed before this Court that by an order dated 25.9.2014 passed in Civil Revision No. 407 of 2014, this Court has allowed the plea of the petitioner for consolidation of both the suits under Section 4-A CPC. Since both the suits have already been consolidated and are being tried together, therefore, even otherwise, there is no chance of conflicting findings being recorded. 12. Having regard to these facts, this Court is of the firm opinion that the impugned orders are wholly illegal and would cause grave injustice to the petitioner and are accordingly set aside. 13. The petition stands allowed. 14. The trial Court is directed to proceed with the matter as per the directions given by this Court by order dated 25.9.2014 in Civil Revision No. 407 of 2014.