Rajasthan High Court - Jaipur
Ranjithmal Choradia vs Shivram Singh And Ors on 8 August, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R 1.S.B. Civil Writ Petition No. 14385/2010 Ranjitmal Choradia V/s. Shivram Singh & Ors. with 2.S.B. Civil Writ Petition No. 14298/2010 Mahendra Chand Choradia V/s. Shivram Singh & Ors. with 3.S.B. Civil Writ Petition No. 14353/2010 Kishan Chand Choradia V/s. Shivram Singh & Ors. Date of Order :: 8th August, 2011 REPORTABLE HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. S. Kasliwal Senior Counsel with Ms. Suruchi Kasliwal, for the petitioner. Mr. A.K. Bajpai Senior Counsel with Mr. Jayant Sharma, for the respondents.
Since all the three afore-stated petitions are related and pertain to one piece of land, being shared equally by afore-stated three petitioners, they have been heard together and are being disposed of, by this common order.
2. By way of the instant writ petitions, the petitioners have beseeched to quash and set aside the order dated 16th August, 2010, whereby the learned Additional District Judge (Fast Track), No.9, Jaipur City, Jaipur, allowed the application of the respondent-defendant filed under Section 10 of CPC and dismissed the application of the petitioner filed under Section 151 of CPC.
3. Adumbrated in brief, the facts of the cases giving rise to the instant petitions are as under:-
That the respondent-defendant Shivram Singh filed three separate suits for declaration and setting aside the sale-deed dated 27th August, 1982 duly executed and registered as also seeking permanent injunction before the learned Additional Civil Judge (Senior Division), No.3, Jaipur City, Jaipur against the petitioners-plaintiffs namely Ranjitmal Choradia, Mahendra Chand Choradia and Kishan Chand Choradia. The suit was filed with regard to property in question viz. C-1-A situated at Jaisingh Highway, Bani Park, Jaipur. The petitioners-plaintiffs filed written statement in that suit and thereafter, respondent-defendant no.1 filed a rejoinder and the court framed issues in all the three suits on 7th October, 2003 and the trial of the suit commenced. Thereafter, the petitioners-plaintiffs Ranjitmal Choradia, Mahendra Chand Choradia and Kishan Chand Choradia filed three separate suits, imploring to take the possession of the land in question, mesne profits and permanent injunction against the respondents-defendants.
At the instance of the petitioners-plaintiffs, the suit No. 05/2009 filed by the defendant no.1 Shivram Singh came to be transferred in the court of Additional District Judge (Fast Track), No.9, Jaipur City, Jaipur. Two separate applications came to be filed thereafter, one for consolidation of the suits of the petitioners and the respondent and another application was filed by the respondent-defendant Shivram Singh under Section 10 of CPC imploring to stay the proceedings of suits filed by the petitioners namely Ranjit Mal Choradia, Mahendra Chand Choradia and Kishan Chand Choradia. Learned Additional District Judge having heard both the parties, discussed and critically analyzed all the factual and legal aspects adlongum, allowed the application filed by the respondent-defendant no.1 Shivram Singh under Section 10 of CPC and gainsaid to consolidate all the suits for the purpose of trial. Aggrieved with the order of the learned Additional District Judge (Fast Track), No,9, Jaipur City, Jaipur, the petitioners have filed the instant writ petition.
4. Heard the learned counsel for the parties and carefully perused the relevant material on record including the impugned order dated 16th August, 2010.
5. Learned counsel for the petitioners took me through the provisions of Section 10 of CPC and canvassed that the matter in issue directly and substantially in issue, is not identical in both the suits having been filed by the petitioners as also the defendants. Albeit, the parties and the land in question is one and the same, but the matter in issue is altogether distinct in both the suits. The suit filed by the respondent Shivram Singh is with regard to declaration and setting aside the sale-deed dated 27th August, 1982 of the land in question, whereas the suit filed by the petitioners is for taking possession, mesne profits and granting the permanent injunction against the respondent-defendant with regard to the same property viz. C-1-A, situated at Jaisingh Highway, Bani Park, Jaipur. Learned counsel further contended that since the matter in issue in both the suits directly and substantially are not identical, the learned trial court has committed a grave error in allowing the application under Section 10 of CPC filed by the respondent-defendant Shivram Singh and the same deserves to be set aside. He has cited the judgments of National Institute of Mental Health & Neuro Sciences versus C.Parameshwara reported in (2005) 2 Supreme Court Cases 256; Isher Singh versus Sarwan Singh & Others reported in 1965 Supreme Court 948; Anandan Gupta versus Navin Agarwal & Others reported in AIR 1984 Allahabad 387; Bijedra Kumar & Others versus Basant Kumar reported in AIR 1994 Allahabad 81; British Indian Corporation Ltd. versus Rashtraco Freight Carriers reported in (1996) 4 Supreme Court Cases 748; Shabbir Ahmed Khilji versus Mehar M. Sadique & Others reported in AIR 2003 Rajasthan 331; Ajit Singh versus Sadhu Singh reported in AIR 2004 Delhi 320; Ramamohan Reddy versus Saraswathi reported in 2006(1) ALT 484; L.R. Singh versus H.D. Sharma & Others reported in AIR 1964 Manipur 2 (V 51 C2); Motilal Chunilal Rathore versus Pani Bai & Others reported in AIR 1992 Orissa 155; Dr. Guru Prasad Mohanty & Others versus Bijoy Kumar Das reported in AIR 1984 Orissa 209; P.P. Gupta versus East Asiatic Co. Bombay reported in AIR 1960 Allahabad 184 (V 47 C 36); State Bank of India versus Ranjan Chemicals Ltd. & Anr. reported in (2007) 1 Supreme Court Cases 97, in support thereof.
6. E converso, learned counsel for the respondent has defended the impugned order and stated the same to be just and proper and further contended that it did not warrant any intervention. Learned counsel for the respondent further contended that the parties, as also the land in question in both the suits is identical and the matter in issue is also identical, hence, the impugned order passed by the learned trial court is just and apt and the writ petition deserves to be dismissed.
7. Having reflected over the submissions made by the learned counsel for the parties and carefully scanned the relevant material on record, it is found that the respondent-defendant Shivram Singh filed the suit for declaration and setting aside the sale-deed, first, in the court and the petitioners filed the suit for possession later on. Admittedly, the parties and land in question, in both the suits are the same but the matter in issue, directly and substantially, in both the suits is not the same. Section 10 of CPC is applicable only when the matter in issue, directly and substantially, in both the suits filed previously and subsequently is the same and the parties in both the suits are also the same. Section 10 of CPC reads thus:-
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.
8. A bird's eye view of some of the decisions of the Hon'ble Apex Court throwing light on this issue needs to be taken into consideration.
9. In the case of National Institute of Mental Health & Neuro Sciences Versus C.Parameshwara (supra), the Hon'ble Apex Court observed thus:-
The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts of concurrent jurisdiction and to avoid recording of conflicting findings on issues which are directly and substantially in issue in a 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 another nature instituted under any other statute x x x x.
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.
10. In the case of Isher Singh Versus Sarwan Singh & Others (supra), the Hon'ble Apex Court has held thus:-
The question whether a matter was directly and substantially in issue in the former suit has to be decided (a) on the pleadings in the former suit, (b) the issues struck therein, and the decision in the suit. Further it depends upon whether a decision on such an issue will materially affect the decision of the suit.
11. For attracting the provisions of Section 10, the following conditions must be fulfilled:-
i) the suits must be between the same parties or their successors;
ii) the matter in issue in the later suit must be directly and substantially the same as in the previous suit;
iii) both the suits must be pending in a Court of law;
iv) the parties must be litigating under the same title in both the suits.
12. Adverting to the facts of the instant case, it is tangible from a bare reading of the prayer made in both the suits and relief sought for accordingly are not identical. The respondent-defendant no.1 Shivram Singh filed a suit for declaration and setting aside the sale-deed dated 27th August, 1982 and permanent injunction before the Civil Judge, No.3, Jaipur City, Jaipur, which later on, came to be transferred to the Additional District Judge (Fast Track), No.9, Jaipur City, Jaipur, whereas in the civil suit filed by the petitioners Ranjit Mal Choradia, Mahendra Chand Choradia and Kishan Chand Choradia, the relief sought for is with regard to taking possession, mesne profits and permanent injunction against the respondent-defendants with regard to the property in question. It is true that in case, the civil suit filed by Shivram Singh is decreed in his favour, then the suit filed by the petitioners-plaintiffs shall automatically become defunct. But, if it is decided against the respondent-defendant Shivram Singh, then undeniably and undisputably, the judgment of the court rendered in a suit of Shivram Singh, will not operate as res judicata in the suits filed by the petitioners-plaintiffs. Hence, in view of the settled position of law, as also in the light of the judgments pronounced by the Hon'ble Apex Court in the case of National Institute of Mental Health & Neuro Sciences (supra) and Isher Singh (supra), the learned trial court is found to have committed a grave error in allowing the application filed under Section 10 of CPC by the respondent-defendant no.1 Shivram Singh and thus, the impugned orders deserve to be set aside.
13. Since, the matter in issue, directly and substantially, in both the suits is not the same nor the reliefs sought for, in both the suits by the parties are identical, the provisions of Section 10 of CPC are not found to be applicable in the suits filed by the petitioners. The impugned order is undeniably found to be contrary to the settled proposition of law, hence, the impugned orders deserve to be set aside.
14. For the reasons stated above, all the afore-stated three writ petitions succeed and the impugned orders dated 16th August, 2010 rendered by the learned Additional District Judge (Fast Track), No.9, Jaipur City, Jaipur, stand set aside.
15. It is given to understand by the learned counsel for the parties that the next date fixed for hearing before the learned trial court is on 26th August, 2011 in the suit filed by the Shivram Singh against the petitioners, hence, learned counsel for the parties are directed to appear on the said date before the learned trial court.
(MAHESH BHAGWATI),J.
Mak/-
120-122