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2020 DIGILAW 811 (TS)

M. N. Jagadeesh v. G. Rachaiah

2020-11-27

G.SRI DEVI

body2020
JUDGMENT G. Sri Devi, J. - The present Civil Revision Petition is filed under Article 227 of the Constitution of India, aggrieved by the order, dated 29.10.2019, passed in I.A.No.438 of 2019 in O.S.No.71 of 2018 on the file of the Senior Civil Judge, Gadwal, wherein and whereunder an application filed, under Section 10 read with Section 151 of C.P.C., by the respondents/defendants seeking to stay the suit, was allowed. 2. The facts in issue are as under: 3. The petitioners/plaintiffs herein filed O.S.No.71 of 2018 for grant of permanent injunction restraining the respondents/ defendants and their men from interfering with their peaceful possession of the suit scheduled property. During pendency of the suit, the respondents/defendants filed I.A.No.438 of 2019 seeking to stay the suit in O.S.No.71 of 2018. It is stated in the affidavit filed in support of the petition that the respondents/defendants filed O.S.No.84 of 2018 for perpetual injunction against the petitioners/plaintiffs. Initially, the respondents/defendants filed O.S.No.84 of 2018 before the Vacation Court, Gadwal and the same was returned for some objections and later, they re-presented the said suit before the regular Court i.e., on 04.06.2018 and they found that the petitioners/plaintiffs have already filed caveat petition before the Vacation Court through Sri R.Raghurami Reddy, Advocate, Gadwal, and the Principal Junior Civil Judge, Gadwal, ordered urgent notice in O.S.No.84 of 2018 and said Sri R.Raghurami Reddy, Advocate, appeared before the Court and requested time for filing counter on behalf of the petitioners/plaintiffs. Surprisingly, by changing their Advocate, the petitioners/plaintiffs approached the Senior Civil Judge, Gadwal and filed O.S.No.71 of 2018, seeking permanent injunction and that no single word was mentioned in the plaint in O.S.No.71 of 2018 with regard to the aspects of filing of caveat petition as well as pendency of O.S.No.84 of 2018 filed by the respondents/ defendants against them. It was also stated that the respondents/ defendants came to know through their Counsel that 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. It was also stated that the respondents/ defendants came to know through their Counsel that 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. It was further stated that O.S.No.71 of 2018 was filed by the petitioners/plaintiffs after the respondents/ defendants filed a civil suit vide O.S.No.84 of 2018, for the same relief, which is pending in between the same parties, before the Principal Junior Civil Judge, Gadwal, as such, it is essential to stay the proceedings in the above suit i.e., O.S.No.71 of 2018, otherwise, they will be put to great loss and injustice, which cannot be compensated. 4. Reiterating the averments in the plaint in O.S.No.71 of 2018, the petitioners/plaintiffs filed counter, inter alia, contended that the respondents/defendants shown the suit scheduled property as open place admeasuring 200 square yards and fabricated the Gift Deed. It was also stated that the boundaries mentioned in the alleged Gift Deed are with modifications and in fact no property was available as open place and that the respondents/defendants suppressed the facts and filed O.S.No.84 of 2018. It was also stated that the respondents/defendants are not entitled for the relief of stay and prayed to dismiss the petition. 5. During enquiry, on behalf of the respondents/defendants Exs.P1 to P7 were marked and on behalf of the petitioners/ plaintiffs Exs.R1 to R.54 were marked. 6. After considering the rival submissions and the documentary evidence available on record, the Court below allowed the petition by granting stay of the proceedings in O.S.No.71 of 2018 on the file of the Senior Civil Judge, Gadwal. Challenging the same, the present Civil Revision Petition is filed by the plaintiffs. 7. Despite service of notice, respondents/defendants have neither appeared nor they were represented by an advocate and by an order, dated 09.11.2020, the respondents were set ex parte. Hence heard the learned Counsel for the petitioners/plaintiffs. 8. Challenging the same, the present Civil Revision Petition is filed by the plaintiffs. 7. Despite service of notice, respondents/defendants have neither appeared nor they were represented by an advocate and by an order, dated 09.11.2020, the respondents were set ex parte. Hence heard the learned Counsel for the petitioners/plaintiffs. 8. Learned Counsel for the petitioners/plaintiffs would submit that the order of the Court below is not legal and vitiated by material irregularities in exercise of jurisdiction vested in it; that the Court below erred in granting stay of the proceedings in O.S.No.71 of 2018 even though the subject property, the parties and the title are different from the suit in O.S.No.84 of 2018; that the Court below failed to see that the boundaries of suit scheduled property of O.S.No.71 of 2018 are different from the suit scheduled property in O.S.No.84 of 2018 and as such granting stay of the proceedings in O.S.No.71 of 2018 is not proper. He further submits that the Court below ought to have seen that the total extent of Sy.No.922 is Ac.3.39 guntas and the extent involved in O.S.No.71 of 2018 is only 200 square yards and hence the property described in O.S.No.71 of 2018 with specific boundaries cannot be said to be the same property as shown in the suit schedule of O.S.No.84 of 2018; that the Court below failed to see that scheduled property in O.S.No.84 of 2018 is open site, whereas the scheduled properties in O.S.No.71 of 2018 are shops bearing D.Nos. 4-51 and 4-52 and nature of suit properties in O.S.No.71 of 2018 and O.S.No.84 of 2018 are not one and the same; that the Court below ought to have seen that the claim of the parties to the suits is not litigating under the same title and the proceedings in O.S.No.71 of 2018 cannot be stayed; and that the Court below ought to have seen that the cause of action in both the suits are entirely different and there is no common issue directly or substantially in issue in both the suits, hence one suit cannot be stayed. He also submits that the Court below ought to have seen that the petitioners/plaintiffs filed an application for temporary injunction in O.S.No.71 of 2018 and in view of stay of the proceedings in O.S.No.71 of 2018, the said application will not be considered and that the petitioners/plaintiffs are deprived of their right to seek interim relief during pendency of the suit and that in any view the order of granting stay of the suit is contrary to Section 10 of C.P.C. In support of his contention, he relied on the judgment of this Court in Amrutlal and Company, Merchants and Commission Agents, Nizamabad v. Rankids Impex Private Limited, New Delhi, (2015) 1 ALT 730 (S.B.). 9. Before proceeding further, it would be useful to refer to Section 10 of C.P.C., which reads as under: "Section 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." 10. From perusal of Section 10 of C.P.C., it brings out that in order to attract the provision of Section 10 of Code of Civil Procedure, the following conditions are required to be fulfilled: "i. Two suits- one previously instituted and the other subsequently instituted; ii. Matter in issue-The matter in issue in both the suits must be same meaning thereby the entire subject matter of the two suits must be same and identical. It is however, not necessary for the applicability of this Section that all the issues in the previously instituted suit must also be the issues in the subsequently instituted suit, nor it is essential that the reliefs claimed in both the suits should be identical; iii. Same parties; iv. It is however, not necessary for the applicability of this Section that all the issues in the previously instituted suit must also be the issues in the subsequently instituted suit, nor it is essential that the reliefs claimed in both the suits should be identical; iii. Same parties; iv. Pendency of suit; v. Same relief : it is essential that the Court in which the first suit is pending must be competent to grant the relief claimed in that suit and also the relief claimed in the second suit." 11. In Gupte Cardiac Care Center and Hospital v. Olympic Pharma Case (P) Ltd., (2004) 6 SCC 756 the Apex Court held that "if the matter in the latter suit is found to be 'directly and substantially in issue' in the previously instituted suit, the latter suit is liable to be stayed under Section 10 of C.P.C." 12. In National Institute of Mental Health and Neuro Sciences v. C.Parameshwara, (2005) 1 SCJ 494 the Apex Court observed that the proceedings before a Labour Court cannot be equated with the proceedings before a Civil Court that they are not courts of concurrent jurisdiction and Section 10 of C.P.C. therefore has no application. Referring to the scope of Section 10 of C.P.C., the Court stated: "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 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 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". 13. In the case on hand, the respondents herein filed O.S.No.84 of 2018 on 04.06.2018 for grant of perpetual injunction against the petitioners herein and the same is pending before the Principal Junior Civil Judge, Gadwal. The petitioners herein filed O.S.No.71 of 2018 on 20.06.2018 for grant of the same relief i.e., perpetual injunction against the respondents herein and the same is pending before the Senior Civil Judge, Gadwal. Therefore, the respondents sought stay of all further proceedings in the subsequent suit filed by the petitioners herein on the ground that the parties in both the suits are one and the same and the subject matter in both the suits is identical. Though the main contention of the petitioners is that the nature of suit properties in both the suits are not one and the same, but a perusal of the material on record would show that in the plaint in O.S.No.71 of 2018, the petitioners have pleaded that they intend to construct new shops in the place of old shops by demolishing the said shops. The suit scheduled property in the said suit was shown as shop bearing Nos.4-51 and 4-52 to an extent of 100 square yards each and they do not show the survey number, where the said shops are situated. The suit scheduled property in O.S.No.84 of 2018, filed by the respondents earlier to the suit filed by the petitioners herein, was open place to an extent of 200 square yards situated in Sy.No.922 of Ieeja Village and Mandal. The suit scheduled property in O.S.No.84 of 2018, filed by the respondents earlier to the suit filed by the petitioners herein, was open place to an extent of 200 square yards situated in Sy.No.922 of Ieeja Village and Mandal. It is apparent from the prayers that in both the suits, the plaintiffs have prayed for identical reliefs and the parties in both the suits and the subject matter of the subsequent suit is same to that of the previously instituted suit. It is well settled law that that in case the two suits are so connected, the matter involved in the two suits are identical and the decision in one suit will have direct bearing on the other suit, then the proceedings in one suit will have to be stayed, preferably the latter suit. Further, the object behind Section 10 C.P.C., is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. 14. The facts in the present case and the facts in Amrutlal and Company, Merchants and Commission Agents, Nizamabad v. Rankids Impex Private Limited, New Delhi (1 supra) relied upon by the learned counsel for the petitioners are different. Hence, the same is not applicable to the facts and circumstances of the present case. 15. For the aforesaid reasons, having regard to the facts and circumstances of the case and the law laid down by the Apex Court in the judgments referred to above, I do not find any irregularity much less the illegality in the order under revision, so as to warrant interference by this Court and as such the Civil Revision Petition is liable to be dismissed. 16. Accordingly, the Civil Revision Petition is dismissed, confirming the order, dated 29.10.2019 passed in I.A.No.438 of 2019 in O.S.No.71 of 2018 on the file of the Senior Civil Judge, Gadwal. There shall be no order as to costs. 17. As a sequel thereto, Miscellaneous Petitions pending if any, shall stand closed.