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2018 DIGILAW 2269 (JHR)

Samsuddiin Ansari v. Abdul Sheharam Quraishi

2018-10-11

SHREE CHANDRASHEKHAR

body2018
JUDGMENT Shree Chandrashekhar, J. - The petitioners are aggrieved of order dated 19.08.2016 passed in Title Suit No. 46 of 2011 by which their application under Section 10 CPC for staying further proceeding in the Title Suit No. 46 of 2011 has been rejected. 2. Mr. Shailendra Kumar Tiwari, the learned counsel for the petitioners submits that parties in Title Suit No. 60 of 2006 and Title Suit No. 46 of 2011 are almost same; plaintiff in Title Suit No. 46 of 2011 is defendant no. 2 in Title Suit No. 60 of 2006, and the suit schedule property in Title Suit No. 60 of 2006 is included in Title Suit No. 46 of 2011 and therefore any decision in Title Suit No. 60 of 2006 would materially affect decision in Title Suit No. 46 of 2011. 3. In the first place it needs to be recorded that parties in both the suits are not common; in Title Suit No. 60 of 2006 there are three plaintiffs whereas in Title Suit No. 46 of 2011 the sole plaintiff is Abdul Sheharam Quraishi. This also needs to be indicated that the plaintiff in Title Suit No. 46 of 2011 is not one of the plaintiffs in Title Suit No. 60 of 2006 and the relief sought by the plaintiffs in both the suits is different. Not only that, the defendants in both the suits are also different; in Title Suit No. 60 of 2006 there are as many as seven defendants whereas in Title Suit No. 46 of 2011 six persons have been made defendants. Cause of action for instituting Title Suit No. 60 of 2006 has been shown as a situation arising out of a proceeding under Section 145 Cr.P.C. and withdrawal of the Partition Suit No. 40 of 1999 and in consequence thereof an attempt by the defendants to dispossess the plaintiffs from the suit schedule property. Whereas, specific cause of action for instituting Title Suit No. 46 of 2011 has been shown registration of deed dated 13.01.1950 and an attempt by the defendants to dispossess the plaintiff. May be the suit schedule property in Title Suit No. 46 of 2011 is included in the suit schedule property of Title Suit No. 60 of 2006, in the above facts, a decision in Title Suit No. 60 of 2006 would not constitute resjudicata to Title Suit No. 46 of 2011. May be the suit schedule property in Title Suit No. 46 of 2011 is included in the suit schedule property of Title Suit No. 60 of 2006, in the above facts, a decision in Title Suit No. 60 of 2006 would not constitute resjudicata to Title Suit No. 46 of 2011. 4. Section 10 CPC reads as under; 10. "Stay of Suit.- 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. Explanation-The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action." 5. On application of Section 10 C.P.C. the law is well-settled. In " National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara reported in , (2005) 2 SCC 256 ", the Hon''ble Supreme Court has held as under, 8. " ......... The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as resjudicata in the subsequent suit. Section 10 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 previous 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 the subject-matter in both the proceedings is identical." 6. The object behind Section 10 CPC is that two courts of concurrent jurisdiction should not render conflicting judgments. 7. In " Aspi Jal and Another Vs. 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 the subject-matter in both the proceedings is identical." 6. The object behind Section 10 CPC is that two courts of concurrent jurisdiction should not render conflicting judgments. 7. In " Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor reported in , (2013) 4 SCC 333 ", three suits for eviction were filed for different cause of actions; the third suit was filed during pendency of the first two eviction suits. When on an application under section 10 CPC the trial court stayed further proceeding in the third eviction suit till disposal of the first two eviction suits and the High Court dismissed the writ petition, the Supreme Court has observed as under, 12. " As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where a few of the matters in issue are common and will apply only when the entire subject-matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar; the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of section 10 of the Code is not attracted in the facts and circumstances of the case." 8. The facts disclosed in both the suits do not establish that the conditions for applicability of Section 10 CPC are attracted in this case. Therefore, in our opinion, the provisions of section 10 of the Code is not attracted in the facts and circumstances of the case." 8. The facts disclosed in both the suits do not establish that the conditions for applicability of Section 10 CPC are attracted in this case. The learned trial judge has rightly noticed that the relief claimed by the plaintiffs in both the suits and the cause of action for instituting the suits, are entirely different. 9. Viewed thus, and for the reasons indicated hereinabove, the writ petition is dismissed.