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2018 DIGILAW 4260 (MAD)

Sambantham v. Naga Subramaniam

2018-11-16

M.V.MURALIDARAN

body2018
JUDGMENT : 1. This revision is directed against the order of the learned Additional District Judge, Fast Track Court, Kumbakonam dated 03.11.2017 passed in I.A.No.58 of 2017 in O.S.No.60 of 2015, dismissing the petition filed by the petitioners under Section 10 of C.P.C. 2. The petitioners are defendants 1 and 4 in the suit. The respondents 1 and 2 are plaintiffs and the respondents 3 and 4 are defendants 2 and 3 in the suit. 3. The respondents 1 and 2 have filed the suit for declaration to declare that they are the absolute owners of the suit property and for recovery of possession. Resisting the suit, the petitioners have filed written statement. 4. Pending suit, the petitioners have filed I.A.No.58 of 2017 under Section 10 of CPC seeking to stay the suit in O.S.No.60 of 2015 till the disposal of the Second Appeal in S.A.(MD) No.668 of 2005 pending on the file of this Court. 5. According to petitioners, earlier, the 1st respondent had filed a suit for permanent injunction against the father-in-law of the 2nd petitioner and the 1st petitioner in O.S.No.16 of 2003 on the file of the Principal District Munsif Court, Kumbakonam, as if the 1st petitioner and his elder brother were interfering with the possession of the suit property. After full trial, the said suit came to be dismissed on 29.11.2004. Against the dismissal of the suit, the 1st respondent filed A.S.No.10 of 2005 before the Principal Sub-Court, Kumbakonam and on contest, A.S.No.10 of 2005 also came to be dismissed on 04.3.2005. As against the judgment in A.S.No.10 of 2005, the 1st respondent preferred S.A.(MD) No.668 of 2005 before this Court and the same is pending. According to the petitioners, during the pendency of S.A.(MD) No.668 of 2005, the respondents 1 and 2 have filed the present suit O.S.No.60 of 2015. Hence, the petitioners prayed for stay of O.S.No.60 of 2015 till the disposal of S.A.(MD) No. 668 of 2005. 6. Admitting the pendency of S.A.(MD)No.668 of 2005, the respondents 1 and 2 have filed counter stating that the nature of the present suit and cause of action were different as the earlier suit O.S.No.16 of 2003 was filed for permanent injunction and the present suit was for declaration and recovery of possession. 6. Admitting the pendency of S.A.(MD)No.668 of 2005, the respondents 1 and 2 have filed counter stating that the nature of the present suit and cause of action were different as the earlier suit O.S.No.16 of 2003 was filed for permanent injunction and the present suit was for declaration and recovery of possession. It is stated that the suit for declaration is comprehensive suit and any decree passed in the present suit was right in rem and it binds only the parties to the suit that too for the relief of injunction. Therefore, the earlier suit and the present suit was not suit of the same nature and the matter in issue was not substantially the same. The petition filed by the petitioners under Section 10 of CPC is misconceived and prayed for dismissal of the same. 7. Upon consideration of the rival submissions, the trial Court dismissed the petition. Aggrieved by the same, the petitioners have preferred the present revision. 8. Assailing the order of the trial Court, the learned counsel for the petitioners submitted that the trial Court failed to consider that earlier the 1st respondent filed the suit for the relief of injunction and the same was dismissed, against which first appeal was filed and the same was also dismissed. Against which, second appeal preferred and the same is still pending before this Court. Since the suit property in the previous suit and in the present suit is one and the same, it is necessary to stay the suit in O.S.No.60 of 2015 till the disposal of the second appeal. 9. Reiterating the order of the trial Court, the learned counsel for the 1st respondent submitted that since the present suit is the comprehensive suit and any decree passed in the present suit is right in rem and it binds the whole world, whereas the suit for injunction is a right in personam and it binds only the parties to the suit, the trial Court has rightly dismissed the petition and therefore, there is no need to interfere with the order of the trial Court. 10. I heard Mr. D. Senthil, learned counsel for the petitioners and Mr.V.Chandrasekar, learned counsel for the 1st respondent and also perused the materials available on record. 11. 10. I heard Mr. D. Senthil, learned counsel for the petitioners and Mr.V.Chandrasekar, learned counsel for the 1st respondent and also perused the materials available on record. 11. The grievance of the petitioners is that earlier the 1st respondent had filed a suit against the first petitioner and the father-in-law of the second petitioner for permanent injunction and the said suit was dismissed by the trial Court. Aggrieved by the same, the 1st respondent filed A.S.No.10 of 2005 and the first appellate Court, after contest, dismissed the appeal by confirming the judgment and decree of the trial Court. Again, the 1st respondent filed second appeal before this Court and the same is still pending. Since the issue in this suit directly and substantially in issue in the earlier suit, the present suit is to be stayed till the disposal of the second appeal. 12. Section 10 of CPC provides: “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.” 13. What Section 10 of CPC prohibits is the “trial of any suit” when the matter in issue in that suit is also directly and substantially in issue in a previously instituted suit between the same parties. So far as the expression previously instituted suit is concerned it presents no difficulty as it is well settled that 'suit' includes an 'appeal' and the trial of a subsequently instituted suit will have to be stayed even during the pendency of an appeal or second appeal arising out of the previously instituted suit. 14. So far as the expression previously instituted suit is concerned it presents no difficulty as it is well settled that 'suit' includes an 'appeal' and the trial of a subsequently instituted suit will have to be stayed even during the pendency of an appeal or second appeal arising out of the previously instituted suit. 14. It is settled that where a second appeal arising out of the previously instituted suit was pending and an application for stay of the proceedings in the subsequently instituted suit was moved, in order to render substantial justice, the Courts ought to have stay the subsequent suit. 15. In paragraph 3 of the counter filed in I.A.No.58 of 2017, the respondents 1 and 2 have stated as under: “3. ....... It is true that the second appeal in S.A.No. 668 of 2005 has been filed by this respondent and it is pending. The suit in O.S.No.16 of 2003 is only a suit for injunction simpliciter and the present suit is a suit for declaration and recovery of possession. It is needless to point out that this respondent has admitted the possession of the petitioners and filed the comprehensive suit for declaration and recovery of possession. The nature of the suit is different and the cause of action is also different. .....” 16. From the above, it is clear that the possession of the property in question was with the petitioners. O.S.No.16 of 2003 has been filed by the 1st respondent against the father-in-law of the 2nd petitioner as if the 1st petitioner and his elder brother Saminathan were interfering with the possession of the suit property. When the respondents 1 and 2 in their counter in I.A.No.58 of 2017 admitted that the possession of the suit property was with the petitioners and filed the present suit for declaration and possession, it is unfair on the part of the respondents 1 and 2 to contend that the issue involved in the present is not directly and substantially the issue in the earlier suit. Since both the trial Court and the first appellate Court in the previously instituted suit have given findings that the possession of the suit property was with the petitioners, the issue is directly and substantially in issue in the previous suit instituted by the respondents 1 and 2. 17. Since both the trial Court and the first appellate Court in the previously instituted suit have given findings that the possession of the suit property was with the petitioners, the issue is directly and substantially in issue in the previous suit instituted by the respondents 1 and 2. 17. The respondents 1 and 2 contended that the petitioners have no manner of right over the property owned by them and as per the advocate commissioner's report filed in the previous suit, the east to west measurement of the property owned by the petitioners is 73 feet on the northern side and 144 on the southern side. The north to south measurement is 338 feet on the western side and 321 feet on the eastern side and therefore, the petitioners cannot claim more than that. But taking advantage of the dismissal of the suit, the petitioners have thrown out the respondents 1 and 2 out of possession and now they have also gone to the extent of denying the title of the plaintiff. 18. Both the parties have failed to produce any piece of paper in respect of the suit in O.S.No.16 of 2003, its first appeal and also the second appeal. Since against the judgment of the first appellate Court in A.S.No.10 of 2005, the 1st respondent had preferred second appeal and the same is still pending before this Court, if any observation regarding title and/or possession of the suit property was made by this Court in S.A.(MD) No.668 of 2005, it would affect the claim of the parties in O.S.No.60 of 2015. Hence, in the interest of justice, it would be appropriate to stay O.S.No.60 of 2015 pending on the file of the learned Additional District Court, Fast Track Court, Kumbakonam till the disposal of S.A.(MD) No.668 of 2005. 19. The findings of the trial Court that the issue in O.S.No.60 of 2005 is not the issue in O.S.No.16 of 2003, cannot be accepted. Though the cause of action for the present suit and the previous suit are different, the parties in both the suits are more or less one and the same. The 1st respondent who instituted the suit O.S.No.16 of 2003 had filed the subsequent suit O.S.No.60 of 2015. If the suit O.S.No. 60 of 2015 is stayed till the disposal of S.A.(MD) No.668 of 2005, no prejudice would be caused to the respondents 1 and 2. The 1st respondent who instituted the suit O.S.No.16 of 2003 had filed the subsequent suit O.S.No.60 of 2015. If the suit O.S.No. 60 of 2015 is stayed till the disposal of S.A.(MD) No.668 of 2005, no prejudice would be caused to the respondents 1 and 2. In view of the above, I am of the considered opinion that the trial Court erred in dismissing I.A.No.58 of 2017 and thus, the order of the trial Court is liable to be set aside. 20. In the result :- (a) the Civil Revision Petition is allowed and the order of the trial Court dated 03.11.2017 passed in I.A.No.58 of 2017 in O.S.No.60 of 2015 is set aside; (b) O.S.No.60 of 2015 pending on the file of the learned Additional District Judge, Fast Track Court, Kumbakonam is stayed till the disposal of S.A.(MD) No.668 of 2005 pending on the file of this Court. No costs. Connected miscellaneous petition is closed.