Bombay High Court
Mujibur Rehman Haji Israr Alam Siddiqui vs Nazia Shad Siddiqui on 8 July, 2024
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-OS:9941-DB
JUDGEMENT -JULY 8, 2024.DOCX
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 127 OF 2023
IN
INTERIM APPLICATION (L.) NO. 2827 OF 2022
IN
SUIT (L.) NO. 27343 OF 2021
Digitally
signed by
WITH
SHRADDHA
SHRADDHA KAMLESH
INTERIM APPLICATION (L.) NO. 7621 OF 2023
KAMLESH TALEKAR
TALEKAR Date: IN
2024.07.08
15:41:30
+0530
APPEAL NO. 127 OF 2023
Mujibur Rehman Haji Israr Alam Siddiqui ... Appellant/Ori.
Defendant No.5
Versus
1. Dr. Nazia Shad Siddiqui
2. Noorjahan Begum Haji Israr Alam Siddiqui
3. Mohd. Aslam Haji Israr Alam Siddiqui
4. Haji Salahuddin Haji Israr Alam Siddiqui
5. Islahuddin Haji Israr Alam Siddiqui
6. Shah Alam Haji Israr Alam Siddiqui
7. Mohd. Shad Haji Israr Alam Siddiqui
8. Khushnuda Begam
9. Afsana Begum
10. Kadia Begum
11. Abdul Wahid s/o Mohd. Islam Shaikh
12. Jalalludin Nabi Sarvar
13. Sayad Tarana Bano w/o Zeshan Haider
14. Shamsuddin Alli Hussain Khan
15. Shyamsunder Jaina
16. Mr. Kamran Ansari
17. Smt. Shehnaz A.A. Sayyad ... Respondents/
Defendants
18. The Trustees of the Bai Awabai F. Petition
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Residuary State Trust
***
Mr. B.P. Pandey a/w. Ms. Ridhima Mangaonkar i/b Vivek Pandey,
Advocate for Appellant.
Mr. Rishabh Shah a/w. Mr. Anshul Anjarlekar i/b Raval Shah & Co.,
Advocate for Respondent No.1.
Mr. Y.E. Mooman, Advocate for Respondent No.4.
Mr. Damini Nagpal i/b Manilal Kher Ambalal & Co., Advocate for
Respondent No.11-(ICICI Bank).
_______________________
CORAM: G. S. KULKARNI &
SOMASEKHAR SUNDARESAN, JJ.
Date : 8 July, 2024
_______________________
Oral Judgement (Per, Somasekhar Sundaresan J):
1. This Appeal is directed against an order dated 6 th March, 2023 ("Impugned Order"), by which a Learned Single Judge of this Court refused to reject the Plaint in Suit (L) No. 27343 of 2021 and also refused to stay further proceedings in the Suit. The Impugned Order dismissed an application of the Appellant made under Order VII, Rule 11 ("Order 7-Rule 11") and under Section 10 of the Code of Civil Procedure, 1908 ("CPC"). For the reasons articulated below, we dismiss the Appeal.
2. The Impugned Order is one of the many strands in a web of litigation Page 2 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX among the parties. To appreciate the context in which the Order 7-Rule 11 Application came to be filed, it would be fruitful to examine the background to the litigation among the parties.
Background and Context:
3. The Appellant, Mr. Mujibur Rehman Haji Israr Alam Siddiqui is the son of Late Mr. Haji Israr Alam Mohd Nazir Siddiqui (" Late Mr. Alam").
The Late Mr. Alam's widow is Ms. Noorjahan Begum Haji Israr Alam Siddiqui ("Mother"). Nine siblings who are the offspring of the Late Mr. Alam, the Mother, and eight tenants of various properties, are parties to various suit proceedings in this Court.
4. According to the Appellant, an oral partition and division pursuant to a Family Settlement took place, initially on 11th July, 2000, and thereafter 18th June, 2004 (collectively, "Family Settlement"). Various family members are said to have acted upon such Family Settlement, even creating third- party rights over the properties they were entitled to under the Family Settlement. The Appellant has alleged that the Late Mr. Alam had illegally and unilaterally revoked the Family Settlement by a revocation notice dated 5th March, 2014. According to him, the Late Mr. Alam also reneged on the Family Settlement by alienating various properties. Page 3 of 19
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5. These allegations were countered by the Late Mr. Alam. Other parties who are said to have initially supported the Appellant are said to have switched sides subsequently, opposing the Appellant and seeking the Late Mr. Alam's forgiveness. The upshot of these developments is the institution and pendency of three Suits in this Court, namely:-
a) Suit No. 865 of 2014 (" Suit 865"), filed by the Appellant challenging the revocation of the Family Settlement by the Late Mr. Alam, and the allegedly violative alienation of properties covered by the Family Settlement;
b) Suit No. 1011 of 2014 ("Suit 1011"), filed by the Late Mr. Alam, seeking appointment of a Court Receiver in respect of properties in the possession of the Appellant; and
c) Suit (Lodging) No. 27343 of 2021 (" Suit 27343"), filed by Dr. Nazia Shad Siddiqui ("Dr. Nazia Shad"), the daughter-in-law of the Late Mr. Alam (sister-in-law of the Appellant), based on the assertion that she is an executor of a purported Will dated 11 th November, 2019 that had been made by the Late Mr. Alam.Page 4 of 19
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6. Both, the Late Mr. Alam and Dr. Nazia Shad have alleged hat the Appellant has created bogus and fraudulent Family Settlements. It is in Suit 27343 that the Appellant preferred Interim Application (Lodging) no. 2827 of 2022 ("IA 2827") seeking rejection of the Plaint under Order 7-Rule 11, and stay of further proceedings under Section 10 of the CPC. IA 2827 in Suit 27343 came to be dismissed by the Impugned Order. The instant Appeal has been filed against the Impugned Order, with Interim Application (Lodging) No. 7621 of 2023, seeking a stay on the Suit proceedings pending hearing and final disposal of this Appeal.
7. In Suit 1011 (the suit instituted by the Late Mr. Alam), a Learned Single Judge of this Court had passed an order dated 24 th July, 2014, directing the parties to maintain status quo in respect of the properties listed in Exhibit C of the Plaint in Suit 865 (" Status Quo Order"). The Appellant had alleged that his father had committed perjury by filing contradictory assertions on oath in the aforesaid litigation. The Late Mr. Alam had taken out Chamber Summons No. 217 of 2017 in Suit No. 1011 of 2014 seeking to bring on record the fact that third party interests exist on the properties. The Late Mr. Alam had gifted properties to the Appellant's siblings. The Late Mr. Alam had also formed a trust and transferred rights to certain properties to the trustees. The Appellant filed Contempt Petition No. 72 of 2017 against Late Mr. Alam for the alleged violation of the Status Quo Order. Page 5 of 19
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8. On 20th October, 2020, Dr. Nazia Shad wrote to the Appellant, calling upon him to implead her in Suit 865, in place and stead of the Late Mr. Alam, who had passed away on 13 th May, 2020. The request was on the premise that she was the beneficiary of the assets forming part of the suit properties pursuant to a Will dated 11th November, 2019. Dr. Nazia Shad moved Interim Application No. 566 of 2021 in Suit 865 praying for being joined as a Defendant in place of the Late Dr. Alam.
9. In addition, in Suit 1011, Dr. Nazia Shad, her husband Mr. Mohd Shad Haji Israr Alam Siddiqui ("Mr. Mohd Shad", a sibling of the Appellant) and the Mother filed Interim Application No. 8532 of 2020 (" IA 8532") to be made parties, in the capacity of Plaintiffs in place and stead of the Late Mr. Alam, the Original Plaintiff, in the Suit and in all the motions and application relating to the Suit. Dr. Nazia Shad claimed to now be the absolute owner (pursuant to the Will) of certain properties that the Late Mr. Alam had sued for in Suit 1011. The Appellant filed Contempt Petition (Lodging) No. 278967 of 2021, which is also pending before this Court.
10. The Learned Single Judge also decided IA 8532 in Suit 1011 vide an order dated 13th March, 2023 ("13th March Order") and allowed the replacement of the Late Mr. Alam, the Original Plaintiff with the Mother, Dr. Nazia Shad and Mr. Mohd Shad, as Plaintiff 1(a), Plaintiff 1(b) and Plaintiff Page 6 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX 1(c) respectively in the Suit and connected applications and motions. Against the 13th March Order, another appeal i.e. Appeal No. 126 of 2023 has been filed, and is being heard separately.
11. In this Appeal, we have heard the Learned Counsels for the parties at length. At the heart of the Appellant's submission is the contention that there is no cause of action available to Dr. Nazia Shad to bring Suit 27343 on the basis of the Will dated 11th November, 2019. According to the Appellant, unless Suit 1011 is decreed, there can be no assured declaration that the Late Dr. Alam was entitled to the suit properties in those proceedings. Therefore, according to the Appellant, unless Suit 1011 is decreed, there is no basis for Dr. Nazia Shad claiming through the Will to be able to pursue a suit as an executor of the Will.
Order 7- Rule 11 of CPC :
12. In our opinion, for purposes of considering an application under Order 7-Rule 11, the rule is to examine the Plaint to ascertain as to what is the cause of action that has made the Plaintiff institute the Suit. If on a plain reading of the Plaint, it is evident that a cause of action is shown, the plaintiff simply cannot be non-suited. If such a reading would evidently demonstrate the absence of a cause of action or the lack of jurisdiction, then rejection of the Suit would follow. Upon a careful consideration of the Page 7 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX record, in our opinion, the Learned Single Judge was right in his finding that although the outcome in Suit 1011 may have a bearing on the outcome in Suit 27343, it would not follow that Suit 27343 could never have been instituted, unless and until Suit 1011 is decreed.
13. Learned Counsel on behalf of the Appellant also argued before this Bench that since the revocation of the Family Settlement and the gifting of the assets would constitute a violation of the Status Quo Order, there could never have been a valid revocation. Any such disposition of the assets covered by the Status Quo Order would be a violation of the Status Quo Order, he would argue. In our opinion, such an argument has no relevance for this Appeal, since the very scope of review by the Court when dealing with an application under Order 7-Rule 11 is to examine whether the Plaint discloses a cause of action or fails to do so. It is trite law that the effect of an injunction to maintain status quo is not to obliterate the rights of the parties to the properties. Only the assertion of rights is meant to be kept in abeyance by a status quo order. What the context of the Status Quo Order was; who is the intended protectee of the Status Quo Order; and against whom such protection has been granted; and whether taking these factors into account, there has been a violation of the Status Quo Order, are all matters of evidence and trial.
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14. By a mere reading of the Plaint, if it cannot be said that there is no cause of action, it would not be permissible to non-suit a party. In our opinion, it cannot be said that the plaint does not disclose a cause of action merely by reason of the Status Quo Order being in place.
15. Learned Counsel for the Appellant has cited the decisions of the Supreme Court in Ramisetty Venkatanna and Anr. Vs. Nasyam Jamal Saheb and Ors.1 and in T Arivandandam Vs. T.V. Satyapal and Anr. 2, in support of his argument that IA 2827 ought to have been allowed. In our opinion, these judgments are of no assistance to the Appellant. The propositions they lay down are unexceptionable - clever drafting and sleight of hand to make out a cause of action where none may exist, or a pretension that a claim is not barred by limitation when it is actually so barred, must indeed be interdicted by courts by exercise of powers under Order 7-Rule 11. However, in the matter at hand, it is not apparent from the face of the Plaint in Suit 27343 that there is no cause of action in existence, and that such absence has been masked and hidden by clever drafting or sleight of hand.
16. It is apparent that the parties have been involved in intense litigation. The dramatis personae have also changed their approach to the dispute and have presented to the Court, a complex set of facts to be tried. When the 1 2023 SCC OnLine SC 521 2 (1977) 4 SCC 467 Page 9 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX three Suits are tried, the Court at that stage would determine the sequence, manner and approach to the trial. For purposes of dealing with an application under Order 7-Rule 11, the Plaint in Suit 27343 does not disclose any ground on which Dr. Nazia Shad must shut out completely at the threshold. Whether the Will is a valid one, and whether it confers the rights sought to be enforced, are matters of trial, which ought to be conducted after leading evidence. It could well be that the Suit may eventually fail, but the standard to be applied for a review of the pleadings for determining whether to non-suit the Plaintiff under Order 7-Rule 11 is to see if the Plaint itself fails to disclose a cause of action.
17. Suit 865, prosecuted by the Appellant represents the Appellant's endeavour to assert his perceived rights under the Family Settlement. Suit 1011 is an endeavour of the Late Mr. Alam to assert his rights against the Appellant. When the Mother, along with Dr. Nazia Shad and Mr. Mohd Shad replace the Late Mr. Alam in Suit 1011, they would only get to assert what the estate of the Late Mr. Alam must consist of. On the other hand, Suit 27343 is the assertion of a different purported right - that of Dr. Nazia Shad claiming to be the absolute owner of certain properties by reason of being a beneficiary of disposition by way of a Will made by the Late Mr. Alam. Without these facets being subjected to trial, it would not be possible to conclude from a plain reading of the Plaint that no cause of action of any Page 10 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX nature has been made out. Therefore, we have no hesitation in rejecting the reliance of the Appellant on these judgements.
18. On the other hand, the decision of the Supreme Court in Dahiben vs. Arvindbhai Kalyanji Bhanusali (Gajra)(D) through LRS & Ors.3 commends itself for acceptance and application to the facts of this case. We may profitably refer to Paragraphs 23.1 to 23.11 from this decision, which read thus:-
23.1. We will first briefly touch upon the law applicable for deciding an application under Order 7 Rule 11 CPC, which reads as under:
"11. Rejection of plaint.--The plaint shall be rejected in the following cases--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of Rule 9:
Provided that the time fixed by the court for the 3 (2020) 7 SCC 366 Page 11 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff."
(emphasis supplied) 23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.
23.3. The underlying object of Order 7 Rule 11(a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11(d), the court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.
23.4. In Azhar Hussain v. Rajiv Gandhi, this Court held that the whole purpose of conferment of powers under this provision is to ensuire that a litigation which is meaningless, and bound to prove abortive, should not be permitted to waste judicial time of the court, in the following words :(SCC p. 324, para 12) "12. ... The whole purpose of conferment of such powers is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even in an ordinary civil litigation, the court readily exercises Page 12 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX the power to reject a plaint, if it does not disclose any cause of action."
23.5. The power conferred on the court to terminate a civil action is, however, a drastic one, and the conditions enumerated in Order 7 Rule 11 are required to be strictly adhered to.
23.6. Under Order 7 Rule 11, a duty is cast on the court to determine whether the plaint discloses a cause of action by scrutinising the averments in the plaint [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] , read in conjunction with the documents relied upon, or whether the suit is barred by any law. 23.7. Order 7 Rule 14(1) provides for production of documents, on which the plaintiff places reliance in his suit, which reads as under:
"14. Production of document on which plaintiff sues or relies.--(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3) A document which ought to be produced in court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the court, be received in evidence on his behalf at the hearing of the suit.
(4) Nothing in this Rule shall apply to document produced for the cross-examination of the plaintiff's witnesses, or, handed over to a witness Page 13 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX merely to refresh his memory."
(emphasis supplied) 23.8. Having regard to Order 7 Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order 7 Rule 11(a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.
23.9. In exercise of power under this provision, the court would determine if the assertions made in the plaint are contrary to statutory law, or judicial dicta, for deciding whether a case for rejecting the plaint at the threshold is made out.
23.10. At this stage, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration. [Sopan Sukhdeo Sable v. Charity Commr., (2004) 3 SCC 137] 23.11. The test for exercising the power under Order 7 Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed. This test was laid down in Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I [Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I, (2004) 9 SCC 512] which reads as : (SCC p. 562, para 139) "139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed."
23.12. In Hardesh Ores (P) Ltd. v. Hede & Co.5 [(2007) 5 SCC 614] the Court further held that it is not permissible to cull out a sentence or a passage, and to read it in isolation. It is the substance, and not merely the form, which has to be looked into. The plaint has to be construed as it stands, without addition or subtraction of words. If the Page 14 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX allegations in the plaint prima facie show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact. D. Ramachandran v. R.V. Janakiraman6 [(1999) 3 SCC 267; See also Vijay Pratap Singh v. Dukh Haran Nath Singh, AIR 1962 SC
941.] 23.13. If on a meaningful reading of the plaint, it is found that the suit is manifestly vexatious and without any merit, and does not disclose a right to sue, the court would be justified in exercising the power under Order 7 Rule 11 CPC.
(Emphasis Supplied)
19. It should be noted that the Will under which the Plaintiff in Suit 27343 is claiming rights, no matter how strongly it may be contested and disputed by the Appellant, is a document annexed to the Plaint, forming an integral part of the Plaint. For a Plaint to be rejected under Order 7-Rule 11, from a plain reading of the Plaint and the documents annexed thereto, it must be found that there is no cause of action at all. The Plaint and the documents annexed in Suit 27343 do not lend themselves to such a conclusion.
Section 10 of CPC :
20. So also, in our opinion, the pendency of IA 8532 in Suit 1011 and the nature of prayers in Suit No. 1011 could never be a ground for a rejection of the Plaint in Suit 27343 under Order 7-Rule 11 or for a stay under Section 10 of the CPC. The argument of the Appellant that the same relief is being sought through two parallel proceedings, is not accurate. First, the reliefs in Page 15 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX IA 8532 (in Suit 1011), and in Suit 27343 are not identical. They could enure to the benefit of the same party, but they cover different causes of action. That the benefit would flow to the same person, would not make the two proceedings identical in what they seek. Second, as a matter of fact, IA 8532 sought addition of three substituted plaintiffs in place and stead of the Late Mr. Alam with consequential amendments. On the other hand, Suit 27343 seeks to enforce rights under a Will. We are unable to see how the two completely different suits, seeking reliefs contextual to two distinct causes of action, would constitute pursuit of the same reliefs in purportedly parallel proceedings.
21. The Appellant has sought to press into service, Section 10 of the , to seek a stay of the proceedings in Suit 27343. In this regard, the decision of the Supreme Court in National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara4 cited by Learned Counsel for Dr. Nazia Shad would be relevant. The Supreme Court has clearly declared the law to state that Section 10 of CPC would apply only in cases where the whole of the subject- matter in both suits is identical. The following extracts are noteworthy:-
7. The short question which arises for determination is --
whether application dated 20-6-2003 filed by the respondent under Section 10 read with Section 151 CPC seeking stay of Civil Suit No. 1732 of 1995 in the Court of City Civil Judge, Bangalore, was maintainable.
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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 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.
(Emphasis Supplied)
22. It will therefore be seen that the matter in issue in a subsequent suit must be directly and substantially in issue in the earlier suit. Emphasising that the whole of the subject-matter has to be identical for an intervention under Section 10 of the CPC to be invoked, the Supreme Court ruled that the identity of the matter in issue would be vital. As stated above, Suit 1011 in which Dr. Nazia Shad has is now the Plaintiff, is based on her role as an executor of the purported Will. That Suit, would at best, result in a declaration as to what the Late Mr. Alam would have been entitled to, and Page 17 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX therefore, what his estate would now consist of. On the other hand, Suit 27343 would lead to determining if she is personally entitled to the assets purportedly gifted to her. We have gone through the prayers in the two Plaints and conclude that they do not disclose a direct and substantial commonality of identity, for the powers under Section 10 of the CPC to be invoked, to stay Suit 27343. In our view, in the absence of a direct and substantial identical nature of the two suits, the Learned Single Judge was right in not invoking powers under Section 10 of the CPC to stay Suit 27343.
23. Therefore, we see no reason to find fault with the reasoning of the Learned Single Judge in refusing to reject the plaint in Suit 27343 or in refusing to stay the Suit.
24. We do not think it necessary or appropriate to burden this judgement any further with prolix analysis of the long list of case law cited at the bar, in particular, case law on the law of succession and personal law applicable to Muslims (the community to which the parties belong).
25. We make it clear that nothing in this judgement is an expression of an opinion on the merits of the case or the relative strength of the parties' respective positions in the multiple legal proceedings they are engaged in. We have limited ourselves to the scope of review of an appeal court in considering the implications of Order 7-Rule 11 and Section 10 of CPC, as Page 18 of 19 8 July, 2024 Shraddha Talekar PS ::: Uploaded on - 08/07/2024 ::: Downloaded on - 09/07/2024 16:59:15 ::: JUDGEMENT -JULY 8, 2024.DOCX invoked by the Appellant. The analysis in this judgement is prima facie in nature and the trial of the multiple pending suits and related proceedings shall be conducted uninfluenced by any observation made in this judgement.
26. Consequently, we see no merit in the Appeal, which stands dismissed. As a result, pending Interim Application in the Appeal, too stand dismissed. There shall be no order as to costs.
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