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2019 DIGILAW 846 (JHR)

Ram Chandra Mirdha v. Arbind

2019-04-09

SUJIT NARAYAN PRASAD

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JUDGMENT 1. This writ petition is filed under Article 227 of the Constitution of India wherein order dated 22.06.2017 passed in Title Suit No.163 of 2015 by Civil Judge, Senior Division-I, Deoghar, is under challenge whereby and whereunder, petition filed by the petitioner under Section 10 of the Code of Civil Procedure , has been held to be without any merit and accordingly rejected. 2. It is the case of the petitioner as per the pleadings made in this writ petition that the respondents/plaintiffs have instituted the case under Section 6 of the Specific Relief Act, 1963 for seeking relief, for restoration of possession of property but without disclosing the fact regarding institution of an earlier Suit being Title Suit No.105 of 2000 wherein the decree has been passed and the same is decreed partly and partly dismissed against which the first appeal has been filed by the petitioner which has been challenged before the second appellate court being Second Appeal No.197 of 2010 and therefore, for the same suit property, second appeal is pending, which will amount to continuation of the original suit and therefore, the present suit being Title Suit No.163 of 2015 is required to be stayed, in view of the provision of Section 10 of the Code of Civil Procedure but without considering that aspects of the matter the said petition has been rejected against which this writ petition has been filed. 3. While on the other hand learned counsel appearing for the respondents has vehemently opposed the ground urged by the petitioner by submitting that whatever stands has been taken by him before this Court, all the facts were never been brought before the trial court and therefore, the said order has been passed and since the said order has been questioned under Article 227 of the Constitution of India, therefore, this Court is required to test the legality and propriety of the order by going through its reason, therefore the petitioner may not be allowed to raise additional fact which were never brought before the trial court. It has further been submitted that the present case is not coming under the fold of Section 10 of the C.P.C. because with respect to the suit property, the decree has been passed partially in favour of the respondent/defendant which has been assailed in first appeal, in which he has lost, against which the second appeal is pending so far as it relates to the decree which has been passed against him. The respondent has filed a Suit under Section 6 of the Specific Relief Act, 1963 for recovery of possession, so far as it relates to the decree passed in his favour and therefore, pendency of the second appeal cannot be said to be a parallel suit, pending before the court having its concurrent jurisdiction and therefore, the trial court has rightly rejected the aforesaid petition, hence the same may not be interfered with. 4. Having heard the learned counsel for the parties and after going across the pleading made by them and the reasoning recorded by the trial court, this Court deem it fit and proper, first to refer the provision of Section 10 of the Code of Civil Procedure which speaks as follows:- "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]." 5. It is evident from the aforesaid provision that the scope which is lying pending for enactment of the said provision is that where the Suit is instituted in a court to which provisions of C.P.C. apply, it shall not proceed with the trial of another Suit in which the matter in issue is also directly or substantially in issue in previously instituted suit under the same parties. It is further evident that the provision of Section 10 of C.P.C. is applicable, if it is required that the court in which the previous suit is pending is competent to grant relief claim as because under the provision of Section 10 it has been stipulated that the "no court shall proceed with the trial for any suit" makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief, the issue regarding applicability of Section 10 of the C.P.C. has been dealt with and discussed by the Honble Apex Court in the case of National Institute of Mental Health & Neuro Sciences Vrs. C. Parameshwara reported in (2005) 2 SCC 256 , wherein at Paragraph-8 it has been laid down as:- "8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of 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. 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." Judgment rendered by the Honble Apex Court in the case of Aspi Jal and Anr. Vrs. Khushroo Rustom Dadyburjor reported in AIR 2013 SC 1712 , wherein at Paragraph-11 which has been speaks hereunder as:- "11. From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. "no court shall proceed with the trial of any suit" makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject-matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding." It has been observed that 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 subsequent suit. Section 10 applies only in cases where the whole 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 the whole of the subject-matter in both the proceedings is identical. It is further evident from the aforesaid provision that 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, to avoid two parallel trials on the same issue by two courts and to avoid recording conflicting findings on issues which are directly and substantially in issue in previously instituted suit. 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. The main emphasis of argument of the learned counsel for the petitioner that the appeal being continuation of proceeding of the original trial court, therefore, it will be said to be the proceeding of the original trial and hence the subsequent petition filed by the respondents being Title Suit No.163 of 2015 is to be stayed in view of the provision of Section 10 of the Code of Civil Procedure. It is not in doubt and dispute that the appeal of the trial of Code of Civil Procedure is the continuation of the original proceeding but this principle will not applicable in the context of the provision of Section 10 of the Code of Civil Procedure, since the aforesaid provision speaks about the stay of the proceeding, which has been filed subsequently. The whole purpose as has been reflected in the judgments of the Honble Apex Court hereinabove in inserting the provision of Section 10 is that if a matter has already been decided by the court, the witness and the time of the party could not be wasted in a second trial and therefore the same should await for the trial so that there may not be the conflicting the decree. Since the word trial is reflected in the provision of Section 10 which implies that the stay of the subsequent suit can be stayed at the stage of the trial. Even though the appellate court is continuation of the original proceeding of the trial but the appellate proceeding cannot be said to be the stage of the trial of the suit and since the mandate of the provision is very much clear that the trial of the suit can be stayed in the back drop of this legal position this Court, has examined the factual aspect involved in this case on the basis of the statutory provision as contained under Section 10 as also the judicial pronouncement as referred hereinabove, is that the petitioner has filed a suit for declaration of right and title wherein the defendant has disputed the title of the petitioner upon which a decree has been passed by declaring therein that a part of the decree holding the title in favour of the petitioner while the part of the land has been held in favour of the respondents. The petitioner has filed first appeal against the decree by which the part of title has been declared in favour of the respondent but in which he has lost, against which he has filed second appeal before the High Court which is lying pending. The respondents have filed suit under Section 6 of the Specific Relief Act, 1963 in order to recover the possession thereof in which the petitioner has appeared and filed written statement. A petition has also been filed under Section 10 of the Code of Civil Procedure for stay of the further proceeding in the suit pertaining to Specific Relief Act, on the ground of pendency of the second appeal, against the part of the property for which the recovery has been sought to be possessed by the respondent. It is to be seen by this Court, as to whether the proceeding which has been filed under the Specific Relief Act, 1963 can be said to be directly and substantially in issue in the previously instituted suit. It is to be seen by this Court, as to whether the proceeding which has been filed under the Specific Relief Act, 1963 can be said to be directly and substantially in issue in the previously instituted suit. Admittedly, the previous suit is a declaratory suit while the present suit is for recovery of possession and no such issue has been framed with the previous suit regarding the recovery of possession since there was no prayer to that effect in the original suit as would be evident from the plaint wherein relief sought for by the petitioner in Title Suit No.105 of 2000 wherein following prayers have made hereinunder:- "i) It may be declared that the alleged sale deed being no.3030 dated 30.11.85 is avoid, inoperative and illegal document. ii) It may further be declared that the plaintiff has right, title and interest over the suit property and is in possession of the same. iii) It may further be declared that the village community has a right of worship in the Mata Mansa Mandir over the suit land. iv) The defendant may be permanently restrained from interfering with the possession of the plaintiff over the suit land or from interfering in any manner with the suit land." Therefore, the basic ingredient of applicability of Section 10 of the C.P.C. is lacking in this case. Furthermore, as would be evident from the impugned order that no such ground has been urged by him before it and therefore the trial court has recorded that no chit of paper substantiating his contention has been brought before it and in view thereof, the petition filed under Section 10 of the C.P.C., has been rejected. Now the further question herein is that the impugned order dated 22.06.2017 has been assailed by invoking the jurisdiction conferred under Article 227 of the Constitution of India under the aforesaid provision, legality and propriety of the order is to be looked into by the High Court and it is the settled position of law that if the document has not been brought before the trial court and in absence thereof if any finding has been recorded, the petitioner will be precluded from challenging the aforesaid order by taking the ground of perversity or any error of finding upon it. 6. 6. In view of such factual aspect and looking to the scope of Article 227 of the Constitution of India, this Court also intends to go through the scope of Article 227 of the Constitution of India. Dealing with the scope of Article 227 of the Constitution of India, Honble Apex Court in the case of Shalini Shyam Shetty Vrs. Rajendra Shankar Patii, reported in (2010) 8 SCC 329 has been pleased to laid down therein regarding the scope of Article 227 which relates to the supervisory powers of the High Courts and by taking aid of the judgment rendered by the Honble Full Bench of Calcutta High Court in the case of Dalmia Jain Airways Ltd. Vrs. Sukumar Mukherjee, reported in AIR 1951 Calcutta 193 , wherein it has been laid down that Article 227 of the Constitution of India does not vest the High Court with limit less power which may be exercised at the courts discretion to remove the hardship of particular decisions. The power of superintendence confers power of a known and well recognized character and should be exercised on those judicial principles which give it its character. In general words, the High Courts power of superintendence is a power to keep the subordinate courts within the bounds of the authority, to see that they do what their duty requires and that they do it in a legal manner. 10. The power of superintendence is not to be exercised unless there has been; 1. An unwarranted assumption of jurisdiction, not vested in a court or tribunal; or 2. gross abuse of jurisdiction; or 3. an unjustifiable refusal to exercise jurisdiction vested in courts or tribunals. Further, in the aforesaid judgment the Honble Apex Court has taken aid of a judgment rendered in the case of Mani Nariman Daruwala Vrs. Phiroz N. Bhatena, reported in (1991) 3 SCC 141 wherein it has been laid down that in exercise of jurisdiction under Article 227, the High Court can set aside or reverse finding of an inferior court or tribunal only in a case where there is no evidence or where no reasonable person could possibly have come to the conclusion which the court or tribunal has come to. The Honble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. The Honble Apex Court has made it clear that except to this limited extent the High court has no jurisdiction to interfere with the finding of facts. Further, the judgment rendered by the Honble Apex Court in the case of Laxmikant Revchand Bhojwani Vrs. Pratapsing Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has been laid down that the High Court under Article 227 cannot assume unlimited prerogative to correct all species of hardship or wrong decisions. Its exercise must be restricted to grave dereliction of duty and flagrant abuse of fundamental principles of law and justice. It has been laid down at paragraph 47 of the aforesaid judgment that the jurisdiction under Article 227 is not original nor is it appellable. This jurisdiction of superintendence under Article 227 is for both administrative and judicial superintendence. Therefore, the powers conferred under Article 226 and 227 are separate and distinct and operate in different fields. Another distinction between these two jurisdictions is that under Article 226 the High Court normal annuls or quashes an order or proceedings but in exercise of its jurisdiction under Article 227, the High Court, apart from annulling the proceeding, can also substitute the impugned order by the order which the inferior tribunal should have made. It has further been laid down regarding the powers to be exercised by the High Court under Article 227 of the Constitution of India. The High Court, in exercise of its jurisdiction of superintendence, can interfere in order only to keep the tribunals and courts subordinate to it within the bounds of its authority, in order to ensure that law is followed by such tribunals and courts by exercising jurisdiction which is vested with them and by not declining to exercise the jurisdiction which is vested in them. Apart from that, High Court can interfere in exercise of its power of superintendence when there has been a patent perversity in the orders of the tribunals and courts subordinate to it or where there has been a gross and manifest failure of justice or the basic principles of natural justice have been flouted. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than the one taken by the tribunals or courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised. 7. According to the considered view of this Court, the petitioner has failed to make out a case warranting interference by this Court in exercise of power conferred under Article 227 of the Constitution of India. 8. In view thereof, the writ petition lacks merit, and accordingly stands dismissed. 9. I.A. No.9033 of 2017 also stands disposed of.