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2018 DIGILAW 369 (ALL)

MOHAMMED YUNUS v. RAHEES AHMED

2018-02-09

JAYANT BANERJI

body2018
JUDGMENT Hon’ble Jayant Banerji, J.—The petitioners, who are the defendants in O.S. No. 14 of 1999 have challenged the order dated 22 May 2017, passed by the District Judge, Bulandshahar in Civil Revision No. 57 of 2017 as well as the order dated 23 September 2016, passed by Additional Civil Judge (Junior Division), Khurja, Bulandshahar in Original Suit No. 14 of 1999. The petitioners have further prayed for allowing the application under Section 10 of Code of Civil Procedure,1908 (hereinafter referred to as C.P.C.) staying the proceedings of O.S. No. 14 of 1999 (Rahees Ahmad v. Mohd. Yunus and others) during the pendency of the previously instituted suit No. 349 of 1983 (Abdul Azeez v. Sameena and others). 2. On 23 October 2017, notices were directed to be issued to the sole respondent both by registered post as well as Dasti and the matter was directed to be listed on 15 November 2017. On 15 November 2017, an affidavit of service was filed on behalf of the petitioners which was taken on record by the Court and the Court recorded that the notice is sufficient on the respondent and that the Court may proceed against the respondent. However, in the interest of justice, the Court directed that the matter be listed again on 24 November 2017. 3. Heard Shri Ravi Anand Agarwal, learned counsel for the petitioner. No one has appeared for the respondent. 4. The facts giving rise to the present petition are that a suit being O.S. No. 349 of 1983 (hereinafter referred to as the suit of 1983) was filed in the Court of Civil Judge, Bulandshahar by the eight plaintiffs therein claiming a relief for partition and possession of their respective portions. Some persons were arrayed as defendants. It appears that on 17 July 1985, the plaintiff Nos. 1, 2, 3, 4 and 5 sold their respective portions in the suit property to Mohammad Yusuf Qureshi and Mohammad Yameen Qureshi (who were added as plaintiff Nos. 10 and 11 respectively in that suit). On 17 July 1985 itself, the plaintiff Nos. 6, 7 and 8 sold their respective portions in the suit property to Mohammad Yunus Qureshi (added as plaintiff No. 9 in that suit). In that suit one Rahees Ahmad son of Abdul Majeed was arrayed as defendant No. 5. A copy of the amended plaint has been filed as Annexure-3 to the petition. 6, 7 and 8 sold their respective portions in the suit property to Mohammad Yunus Qureshi (added as plaintiff No. 9 in that suit). In that suit one Rahees Ahmad son of Abdul Majeed was arrayed as defendant No. 5. A copy of the amended plaint has been filed as Annexure-3 to the petition. No map or plan of the suit property has been enclosed in the plaint. 5. The address and boundaries of the suit property have been stated at the foot of the plaint as follows: Mohalla Sheikh Saheban, Kasba Khurja, District Bulandshahar East Khand Saal Ramesh Chand. West Main Door, House and Chabutara and thereafter road. North House of Chhotey Hakeem. South Godown of Ismail and House of Bakshi. 6. In the suit of 1983 by means of an order dated 7 October 1988, the defendant Nos. 4 and 5 were restrained from changing the spot position without permission of the Court till further orders of the Court. 7. Thereafter, Rahees Ahmad (Defendant No. 5 of the suit of 1983) filed a suit in the Court of Civil Judge (Junior Division), Khurja, District Bulandshahar on 18 January 1999 being O.S. No. 14 of 1999 (Rahees Ahmad v. Mohd. Yunus and others) (hereinafter referred to as the suit of 1999) claiming relief of permanent injunction against the defendants namely, Mohd. Yunus, Mohd. Yusuf, Mohd. Idrish and Mohd. Yamin restraining them not to interfere in the reconstruction of the existing wall shown as letter “B” “C” and “D” in the hand made plan in the plaint of suit of 1999. It is contended by the learned counsel for the petitioners that said Mohd. Yunus, Mohd. Yusuf and Mohd. Yamin are plaintiffs Nos. 9,10 and 11 respectively in the Suit of 1983. The boundaries of the property as shown in the hand made plan in the plaint of the suit of 1999 are as follows: East House of Mahmood Ali @ Kalua. West Passage (A, B, C, H) leading to Shop, Chabutara and thereafter road. North (Along the wall GF) House of Mahmood Ali. (Along the wall AH) House of heirs of Hakim Mugli. South (Along the wall DE) Abdul Rahim and others. (Along the wall BC) Defendants/petitioners 8. The address of the suit property in the suit of 1999 is stated as Mohalla Sheikh Saheban, Khurja, District Bulandshashar. 9. North (Along the wall GF) House of Mahmood Ali. (Along the wall AH) House of heirs of Hakim Mugli. South (Along the wall DE) Abdul Rahim and others. (Along the wall BC) Defendants/petitioners 8. The address of the suit property in the suit of 1999 is stated as Mohalla Sheikh Saheban, Khurja, District Bulandshashar. 9. In the suit of 1999, the petitioners-defendants filed their written statement, in which it was specifically pleaded that the suit cannot be proceeded with in view of the provisions of Section 10 C.P.C. In the written statement it was also stated inter alia that the suit of 1983 was pending between the petitioners/defendants and the plaintiff/respondent regarding the dispute of ownership; and that in that suit the plaintiff/respondent has been restrained from making any changes on the spot by the injunction order dated 7 October 1988; and that the wall B,C,D (shown in the plaint of the suit of 1999) relates to the exclusive ownership of the petitioners/defendants and the plaintiff/respondents has no concern with the same. 10. Thereafter, issues were framed and the issue No. 8 was to the effect that whether the suit of 1999 was barred by the provisions of Section 10 C.P.C. 11. This issue No. 8 was heard by the Trial Court and by means of an order dated 23 September 2016, the Court observed that the boundaries specified in the suit of 1983 and in suit of 1999 were not similar and suit property was not the same; that, however, it is possible that part of the property in suit in one suit can be the property of the other suit. The Court further observed that the suit of 1983 was in relation of partition while the suit of 1999 related to injunction. As such the Court held that issue in Suit of 1983 and suit of 1999 is not one and the dispute in both suits directly and substantially are not the same and as such the suit of 1999 cannot be stayed. 12. The petitioners challenged the aforesaid order by means of Civil Revision No. 57 of 2017 in the Court of District Judge, Bulandshahar. The revisional Court, concurring with the decision of the Additional Civil Judge, rejected the revision vide order dated 22 May 2017 and hence this petition under Article 227 of the Constitution of India has been filed. 13. 12. The petitioners challenged the aforesaid order by means of Civil Revision No. 57 of 2017 in the Court of District Judge, Bulandshahar. The revisional Court, concurring with the decision of the Additional Civil Judge, rejected the revision vide order dated 22 May 2017 and hence this petition under Article 227 of the Constitution of India has been filed. 13. At this juncture, it would be apposite to refer to Section 10 C.P.C. which is 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. 14. From the record, there does not appear to be any dispute with regard to the fact that the plaintiffs Nos. 9,10 and 11 and defendant No. 5 in suit of 1983 appear in the array of parties in the suit of 1999 as the Defendant Nos. 1,2 and 4 and the plaintiff respectively. It is true that the suit of 1983 is a suit for partition and the suit of 1999 is for grant of permanent injunction. However, it is to be seen that whether the “matter in issue” in suit of 1999 is also “directly and substantially in issue” in suit of 1983. In the case of Bepin Behary Mozumdar and others v. Jogendra Chandra Ghosh and another, AIR 1917 Calcutta 248, the Court gave its opinion with regard to phrase “matter in issue” as under: “..... What, then, is the meaning of the expression “the matter in issue”. The defendants invite us to hold that the expression is equivalent to “any of the questions in issue.” The obvious answer is that if that had been the intention of the framers of the section, appropriate words might have been used to bring out such sense. What, then, is the meaning of the expression “the matter in issue”. The defendants invite us to hold that the expression is equivalent to “any of the questions in issue.” The obvious answer is that if that had been the intention of the framers of the section, appropriate words might have been used to bring out such sense. We are of the opinion that the expression “the matter in issue” has reference to the entire subject in controversy between the parties. The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.” 15. It is contended by the learned counsel for the petitioners that in the suit of 1999, the case set up by the defendant-respondent is that the wall B,C, D shown in the plaint requires reconstruction which was being prevented by the petitioners. The wall B,C, D has been shown bounding the property of the petitioner-defendant on two sides. The address of plaintiff-respondent appearing in the suit of 1999 is the same as that of the property to be partitioned in suit of 1983. 16. It is further argued that in the plaint of the suit of 1999, the plaintiff-respondent claims to be the owner of a single storied house at that address demarcated as A,B,C,D,E,F,G,H in the plan drawn in the plaint. The dispute with regard to the rival claims on the wall B,C,D is clearly reflected in the plaint. It has been stated in the plaint that since the petitioners/defendants did not agree to jointly repair that wall, the plaintiff-respondent was forced to file the suit of 1999. 17. In the written statement filed by the petitioners-defendants, it is stated that the wall B,C,D shown in the plaint of suit of 1999 relates to exclusive ownership of the petitioners-defendants and the plaintiff-respondent has no concern with the same. The House described A, B, C, D, E, F, G, H belongs to the petitioners/defendants and the plaintiff/respondent calls a small part of that house as his own. It is further stated that for the partition of the property mentioned in the suit of 1999, the suit of 1983 is pending. In the suit of 1983, an injunction order dated 7 October 1988 has been passed directing the plaintiff-respondent not to change the spot position. 18. It is further stated that for the partition of the property mentioned in the suit of 1999, the suit of 1983 is pending. In the suit of 1983, an injunction order dated 7 October 1988 has been passed directing the plaintiff-respondent not to change the spot position. 18. The petitioners-defendants have also enclosed the examination-in-chief and the cross-examination of the plaintiff-respondent in the suit of 1999 as Annexure 13 and 12 respectively to the writ petition. It is contended that the boundary of the property is testified by the plaintiff-respondent in the examination-in-chief in para 2 of the affidavit. Further, a statement is made in para 9 of the affidavit (examination-in-chief) that in the suit of 1983, the petitioners-defendants admit that the plaintiff-respondent is a co-sharer and the co-sharer is lawfully entitled to file a suit for injunction and the suit of 1999 relates to repair of wall which is for the benefit of the property. In the cross-examination of the plaintiff-respondent, the boundary of the property in suit of 1999 has been stated and it has been further stated that with regard to the property in dispute, the suit of 1983 is pending before the Court of Civil Judge, in which the plaintiff-respondent is a defendant. 19. It is, therefore, sought to be contended that though the suit of 1999 is for the grant of injunction restraining the petitioners-defendants from interfering in the reconstruction of the wall B, C, D, the Courts below should not have lost sight of the fact that the said wall B, C, D is an inextricable and inherent part of the property for which the suit of 1983 is pending. The wall B, C, D has been claimed by the petitioners-defendants in the suit of 1999 as being in their ownership and the decision in the suit of 1983 for partition would certainly have an important bearing on the issue of ownership with regard to the wall marked as B, C, D. 20. At this stage, it would be appropriate to examine and compare the description of the boundaries of the property appearing in the suit of 1983, the suit of 1999, the examination-in-chief and the cross-examination of the plaintiff-respondents: East West North South Description in suit of 1983. Khandsaal Ramesh Chand. Main Door, house and in suit of Chabutara thereafter Road. House of Chhotey Hakeem. Godown of Ismail and house of Bakshi. Khandsaal Ramesh Chand. Main Door, house and in suit of Chabutara thereafter Road. House of Chhotey Hakeem. Godown of Ismail and house of Bakshi. Description in Suit of 1999 (on plan). House of Mahmood Ali @ Kalua. Passage leading to shop chabutara and thereafter road. House of Mahmood Ali. House of heirs Hakim Mugni. Abdul Rahim and others and defendants (petitioners). Description in Examination in Chief of plaintiff-respondent in Suit of 1999. House of Mahmood Ali @ Kalua which he has purchased from Haria Soot Wala. Chabutara, House and Public Street. House of Mahmood Ali @ Kalua which he has purchased from Haria Soot Wala. House of Abdul Rahim and others and defendants (petitioners). Description in cross-examination of plaintiff-respondent in Suit of 1999. House of Mahmood Ali @ Kalua which he has purchased from Haria Soot Wala. Door Chabutara and public street. Abdul Hakeem Mugni @ Chhotey Hakim, his heirs and Mahmood Ali Kalua which he has purchased from Haria Soot Wala. Abdul Rahim and Mohammad Yunus (a defendant/petitioner). 21. Thus, though the description of boundaries in both suits on the West and North sides appear to be similar in parts, the description on the East and South sides are not. 22. However, in paragraph No. 23 of the petition before this Court, the petitioners have given the description of boundaries in the two suits as follows: East West North South Description of boundaries in O.S. No. 349 of 1983. House of Khand Saal Ramesh and others alias Hariya Soot Wale. Sadar Darwaza Makaan, Chabutra & thereafter Road. House of Chote Hakim. Godown Ismail & remaining House (Property situated on the south-west tip). Description of boundaries in O.S. No. 14 of 1999. House of Mahmood Ali (Mahmood Ali purchased the said house from Ramavatar, Prabhash Chandra, Dinesh Chandra, & Vinod Chandra alias Hariya Soot Wale in the year 1994). Road. House of heirs of Chote Hakim House of Mahmood Ali (Purchased from Hariya Soot Wale). House of Abdul Raheem etc. and the petitioners (Property situated on the south-east tip). 23. However, the above comparative descriptions of the boundaries of the property in the two suits mentioned in paragraph No. 23 of the petition are embellished by elaborations and clarifications which are not supported by any material or document on record. 24. House of Abdul Raheem etc. and the petitioners (Property situated on the south-east tip). 23. However, the above comparative descriptions of the boundaries of the property in the two suits mentioned in paragraph No. 23 of the petition are embellished by elaborations and clarifications which are not supported by any material or document on record. 24. The Supreme Court in the case of National Institute of Mental Health and Neuro Sciences v. C. Parameshwara, 2005 (2) SCC 256 , observed that the fundamental test to attract Section 10 of C.P.C. is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. It has been observed as follows: “8. 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. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the Civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. 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. 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 contra-distinction 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 proceedings is identical.” 25. In another case of Aspi Jal and another v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 , the Supreme Court has observed as follows: “11. 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 proceedings is identical.” 25. In another case of Aspi Jal and another v. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 , the Supreme Court has observed as follows: “11. In the present case, the parties in all the three suits are one and the same and the Court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether “the matter in issue is also directly and substantially in issue in previously instituted suits”. The key words in Section 10 are “the matter in issue is directly and substantially in issue in the previously instituted suit”. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.” 26. Thus, it was of utmost importance for the petitioners/defendants to have established in the Courts below for purpose of Section 10 C.P.C that the boundaries of the property in both the suits were identical and, thereafter, that the wall B,C,D specified in the suit of 1999 is an intrinsic part of the property that is sought to be partitioned in the suit of 1983. While deciding the issue No. 8 and refusing to stay the proceedings of the suit of 1999, the trial Court observed that the boundaries specified in the suits are not similar and suit property was not the same but, it is possible that the property in one suit may be a part of the property in the other suit. This observation of the Trial Court cannot be faulted as it has been made after taking into account the material as existing on record. This observation of the Trial Court cannot be faulted as it has been made after taking into account the material as existing on record. However, just because the suit of 1983 relates to partition of house while the suit of 1999 relates to injunction regarding wall B,C,D, would, by itself, not be material for refusing to stay the proceedings. What is important is that whether the “matter in issue” in the subsequent suit is “directly and substantially in issue” in the previously instituted suit and the petitioners/defendants have failed to establish this fact. The orders of the trial Court and the revisional Court declining to stay the trial of the suit of 1999 are in consonance with the jurisdiction conferred on them. In view of the facts stated above, it would not be appropriate to interfere in the orders passed by the Courts below in exercise of the powers under Article 227 of the Constitution of India. 27. The two Division Bench judgements of Calcutta High Court that are cited by the learned counsel for the petitioners in support of his contention in Shorab Merwanji Modi and another v. Mansata Film Distributors and another, AIR 1957 Calcutta 727 and Challapali Sugar Ltd. v. Swadeshi Sugar Supply, AIR 1983 Calcutta 199, have been rendered in appeals arising out of refusal of the trial Court to grant stay of subsequent suit under the provisions of Section 10 C.P.C. In both these cases, the subject-matter of the suits related to matters arising out of agreement/contract. However, the facts of the present petition being different, the aforesaid two judgements would have no bearing. 28. In the judgment of the Supreme Court that has been cited by the learned counsel for the petitioners in Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd., 1998(5) SCC 69 , the question that arose for consideration was whether the bar to proceed with the trial of subsequently instituted suit, contained in Section 10 C.P.C is applicable to summary suit filed under Order 37 of C.P.C. The Supreme Court held that under the circumstances, further proceedings in the summary suit were not required to be stayed. This judgment also is of no help to the petitioners. 29. However, there is an aspect of the case requiring consideration. 30. This judgment also is of no help to the petitioners. 29. However, there is an aspect of the case requiring consideration. 30. As stated above, there are repeated and emphatic assertions by the petitioners/defendants in their pleadings in the Courts below that the property in question in suit of 1999 is the one for which partition is sought in the suit of 1983. This fact has not been specifically denied by the plaintiff-respondent in his cross-examination. An injunction has also been granted in the suit of 1983 which appears unchallenged. 31. In this view of the matter, it is possible that the findings in the Suit of 1983 may affect, in some measure, the outcome of the suit of 1999. Therefore, in the interest of justice, the District Judge, Bulandshahar is directed to consolidate the aforesaid two suits i.e. O.S. No. 349 of 1983 and O.S. No. 14 of 1999 according to the provisions of Order 4-A C.P.C. (Uttar Pradesh State Amendment) both of which suits are said to be pending in the Civil Court at Bulandshahar and they be placed before the appropriate Court in accordance with rules for expeditious trial. 32. With the aforesaid observations, this petition is dismissed.