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2021 DIGILAW 859 (AP)

Vanukuru Koteswara Rao v. Satyavolu Madhukar

2021-12-21

R.RAGHUNANDAN RAO

body2021
ORDER : A few facts are necessary for a proper consideration of the issue raised in this Civil Revision Petition. The 2nd respondent herein had purchased the property under dispute from one of her brothers under a Registered Deed of Sale dated 13.10.2005. Thereafter, she executed a Registered Deed of Gift dated 16.06.2009 in favour of her son, who is the 1st respondent herein. 2. The petitioner herein filed O.S.No.179 of 2009 against the 2nd respondent and subsequently added the 1st respondent. This suit was filed for specific performance of a possessory agreement of sale dated 13.10.2005 and alternatively, for refund of the consideration paid under the agreement of sale along with interest. The 1st respondent filed O.S.No.305 of 2009 before the Principal Junior Civil Judge, Gudivada which was transferred to the Principal Senior Civil Judge, Gudivada and renumbered as O.S.No.226 of 2010. This suit was filed against the petitioner herein, for the relief of permanent injunction, restraining the petitioner and persons claiming through him, from interfering with the possession and enjoyment of the 1st respondent over the property under dispute. Both the suits were tried together and both the suits were dismissed by a Judgment dated 28.04.2014. In this Judgment, the trial Judge disbelieved the possessory agreement of sale dated 13.10.2005 and subsequent payments and dismissed the suit. Similarly the trial Judge came to the view that the petitioner was in possession of the property in dispute and 1st respondent was not in possession of the property under dispute, and dismissed the suit, filed for injunction. Thereafter, the petitioner herein filed A.S.No.83 of 2015 against the Judgment and Decree in O.S.No.179 of 2009 before the XI Additional District Judge, Gudivada. 3. The respondents herein have filed a fresh suit, O.S.No.318 of 2015 before the Principal Senior Civil Judge, Gudivada, against the petitioner, for declaration of the title over the property and delivery of the possession of the same and for mesne profits for the years 2012-13 to 2014-15 and for future profits. This suit was filed on the ground that the petitioner had forcibly occupied the suit schedule property during the pendency of O.S.No.179 of 2009 and O.S.No.226 of 2010. 4. At present, both O.S.No.318 of 2015 and A.S.No.83 of 2015 are pending before the courts. This suit was filed on the ground that the petitioner had forcibly occupied the suit schedule property during the pendency of O.S.No.179 of 2009 and O.S.No.226 of 2010. 4. At present, both O.S.No.318 of 2015 and A.S.No.83 of 2015 are pending before the courts. The petitioner had moved I.A.No.200 of 2020 in O.S.No.318 of 2015 under Section 10 of C.P.C., on the ground that the subject matter of the suit is one and the same, and that the trial Court should stay all further proceedings in O.S.No.318 of 2015 till the disposal of A.S.No.83 of 2015 on the file of XI additional District Judge, Gudivada. This application was dismissed by the trial Court, by an order dated 25.11.2020 holding that the facts of the case do not make out the requirements of Section 10 of C.P.C. 5. Sri Narasimha Rao Gudiseva, learned counsel for the petitioner would submit that the property in dispute, in both the appeal and the suit is one and the same and the parties to the proceedings are also one and the same. He contends that since the reliefs sought in both these proceedings are at cross purposes, it would have to be held that the provisions of Section 10 of C.P.C would be applicable and the proceedings in O.S.No.318 of 2015 should be stayed as these proceedings are subsequent proceedings. 6. Sri P.S.P. Suresh Kumar, learned counsel for the respondents would submit that the cause of action for these suits are different and the findings in one proceeding do not in any manner affect findings in the second proceeding and as such, the provisions of Section 10 of C.P.C. would not be applicable and there is no justification for interfering with the order of the trial Court. 7. Both sides have relied upon various Judgments which are given below: 1) British India Corporation Limited Vs. Rashtraco Freight Carriers, (1996) 4 SCC 748 . 2) Madala Siva Kasirathna Prameela Rani and another vs. Ambati Janardhana Rao and Others, 2007(1) CCC 153 (AP). 3) M.Venkata Ratna Reddu vs. Mohammed Reddy and others, 2004(3)ALT 559. 4) Aspi Jal and another vs. Khushroo Rustom Dadyburjor, 2013(4) ALD 62 (SC). 5) Ambica Sahu vs. Sumitra Sahu, AIR 1990 Orissa 127. 6) Dr.M.Srinivas Rao vs. Madhura Centre/Tiffin, Hyderabad and another, 2014 (2) ALD 160 . 7) Marishetty Pedda Gangaram vs. Chukka Hanumandlu and another, 2017 (6) ALD page 1. 4) Aspi Jal and another vs. Khushroo Rustom Dadyburjor, 2013(4) ALD 62 (SC). 5) Ambica Sahu vs. Sumitra Sahu, AIR 1990 Orissa 127. 6) Dr.M.Srinivas Rao vs. Madhura Centre/Tiffin, Hyderabad and another, 2014 (2) ALD 160 . 7) Marishetty Pedda Gangaram vs. Chukka Hanumandlu and another, 2017 (6) ALD page 1. These Judgments essentially set out the conditions under which the provisions of Section 10 of C.P.C. can be invoked. 8. These Judgments hold that that Section 10 of C.P.C. would be applicable only where the matters in issue in both the proceedings are one and the same and both the proceedings arise on the basis of the title claimed by each of the parties. 9. This principle has been explained by the Hon’ble Supreme Court in Aspi Jal and another vs. Khushroo Rustom Dadyburjor, the relevant extract of this Judgment, which has also been extracted in the Judgment of the trial Court, is as follows: “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”. 10. In the present case we are concerned with the proceedings in O.S.No.179 of 2009 which is being continued by way of A.S.No.83 of 2015 on one hand, and the proceedings in O.S.No.318 of 2015 on the other hand. 11. 10. In the present case we are concerned with the proceedings in O.S.No.179 of 2009 which is being continued by way of A.S.No.83 of 2015 on one hand, and the proceedings in O.S.No.318 of 2015 on the other hand. 11. The case of the petitioner in O.S.No.179 of 2009/A.S.No.83 of 2015 is that the 2nd respondent had entered into an agreement of sale with him on 13.10.2007, under which he has been put in possession, and he is seeking specific performance of the agreement of sale. The case of the respondents in O.S.No.318 of 2015 is that the 2nd respondent had gifted the property to the 1st respondent in 2009 and the petitioner had forcibly entered into possession of the property while O.S.No.179 of 2009 and O.S.No.226 of 2010 were pending before the trial Court earlier. The suit of the petitioner is a suit for specific performance based on an agreement of sale. The suit of the respondents is a suit for recovery of possession on the basis of declaration of a title in favour of the respondents. 12. The issue that would come up in O.S.No.179 of 2009/A.S.No.83 of 2015 is whether the petitioner has been put in possession of the property under the possessory agreement of sale dated 13.10.2005. The issue that would arise in O.S.No.315 of 2015 is whether the petitioner was put in possession under the agreement of sale or whether the petitioner forcibly entered into the property during the course of the earlier suits. The finding in the earlier suit, as to who is in possession and when the possession is said to have taken is also an issue in O.S.No.318 of 2015. A finding in the earlier round of litigation on the question of possession would be binding on the respondents herein, in O.S.No.318 of 2015 also. As this would effectively amount to res judicata, it cannot be said that the principle of Section 10 of C.P.C. would not be applicable. 13. In the circumstances, I am of the view that the principles of Section 10 of C.P.C. are clearly applicable in the present case and the order of the trial Court, to that extent is incorrect and requires to be corrected. 14. Accordingly, the Civil Revision Petition is allowed, and all further proceedings in O.S.No.318 of 2015 pending disposal of A.S.No.83 of 2015, are stayed. There shall be no order as to costs. 14. Accordingly, the Civil Revision Petition is allowed, and all further proceedings in O.S.No.318 of 2015 pending disposal of A.S.No.83 of 2015, are stayed. There shall be no order as to costs. Miscellaneous petitions, pending if any, in this Civil Revision Petition shall stand closed.