Calcutta High Court (Appellete Side)
Madan Mohan Chandra Alias Chanda & Ors vs Madan Mohan Daripa & Ors on 24 March, 2011
Author: Prasenjit Mandal
Bench: Prasenjit Mandal
1 Form No.J(2) IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE C.O. No. 1770 of 2007 Present :
The Hon'ble Mr. Justice Prasenjit Mandal
Madan Mohan Chandra alias Chanda & ors.
Versus
Madan Mohan Daripa & ors.
For the petitioners: Mr. Anit Rakshit,
Mr. Pasupati Sana.
For the opposite parties: Mr. J. R. Chatterjee,
Mr. Hiranmoy Bhattacharya.
Heard On: 02.03.2011.
Judgement On: March 24, 2011.
Prasenjit Mandal, J.: This application is at the instance of the defendant nos.3 to 6 and is directed against the order no.67 dated November 30, 2006 passed by the learned Civil Judge (Senior Division), First Court, Bankura in Title Suit No.28 of 2002 thereby dismissing an application under Section 10 of the C.P.C.
The short fact is that the predecessor-in-interest of the defendant nos.3 to 6 of this title suit and his co-sharers instituted a title suit being Title Suit No.103 of 1978 before the learned Assistant District Judge against the father of the 2 defendant nos.1 and 2 praying for a decree of declaration of the title in respect of 'Ka' schedule property and for recovery of possession in respect of 'Kha' schedule property, as described in the schedule of that plaint. In that suit, there were as many as 7 plaintiffs and 8 defendants. Subsequently, the plaintiff, Madan Mohan Daripa son of late Bijay Kumar Daripa instituted a suit against Sumit Nandy and Sukumar Nanday, that is, the opposite party nos.1 & 2 of the earlier suit claiming that the plaintiff is a monthly tenant in respect of 'ka' schedule property and permanent injunction restraining the defendants from dispossessing him forcibly from the suit properties and other reliefs. It may be mentioned herein that 'ka' schedule property of the present suit, that is, Title Suit No.28 of 2002 was described as 'Kha' schedule property of the earlier suit and that 'Kha' schedule property was the part of the 'Ka' schedule property in the earlier suit. In the said earlier suit, the plaintiffs claimed that they were the owners in respect of the 'Ka' schedule property of the said suit. That suit was disposed of in favour of the plaintiffs and the defendants preferred two appeals. The two appeals were allowed and so, the plaintiffs of the earlier suit preferred two second appeals and those two appeals are now pending before this Hon'ble High Court, Calcutta. For that reason, the heirs of the plaintiff no.1 of the earlier suit, that is, defendant nos.3 to 6 of the present suit have prayed for stay of the instant suit till 3 the disposal of the said two second appeals. That application was rejected by the impugned order. Being aggrieved, this application has been preferred.
Now, the question is whether the learned Trial Judge is justified in rejecting the said application. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that a pure question of law has arisen as to the application under Section 10 of the C.P.C. For better appreciation of the provisions of Section 10 of the C.P.C., the same is quoted below:-
"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 the 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]."
Therefore, in order to bring the present suit within the ingredients of Section 10 of the C.P.C., the petitioners are required to prove (1) that the two suits are between the same parties or the parties under whom they are claiming (2) the issues of the two suits are the same, and (3) both the suits are pending either in the same Court or any other Court.
4
In the instant case, as noted above, the earlier suit, that is, Title Suit No.103 of 1994 has already been disposed of. The first appeals were also disposed of and now the second appeals are, on purely on the question of substantial law, is pending before the Hon'ble High Court, Calcutta.
So far as the parties are concerned in the two suits, I find that the parties are not the same at all. In the earlier suit, there were 7 plaintiffs and 8 defendants. One Kalibala Dassi figured as opposite party no.4 in the earlier suit but she is not at all a party in the present suit. The later suit, that is, Title Suit No.28 of 2002 was filed by Madan Mohan Daripa, son of late Bijay Kumar Daripa against six defendants, namely, Sumit Nandi, Subinoy Nandi, both son of Sukumar Nandi, Madan Mohan Chandra Subhas Chandra, Swarup Chandra, Lalmohan Chandra all sons of late Radhan Raman Chandra. Thus, I find that parties of the two suits are not the same. The issues of the two suits cannot be the same. The earlier suit was for declaration of title and recovery of possession. So, issues have been framed accordingly, while in the later suit, that is, Title Suit No.28 of 2002 relief for declaration of tenancy right has been sought for. So, issues are not also the same. The stages of the two suits are not also the same. The earlier suit has already been disposed of and now the second appeals are pending before the Hon'ble Court whereas the later suit is pending at the stage of peremptory hearing. 5 Moreover, the basic test that has to be considered, has been discussed by the learned Trial Judge to the effect that the contention of plea of stay can be accepted provided the plaint in one suit would be the written statement in the other suit and that the decision in one suit would operate as res judicata in the other suit. This is observation of a learned Single Judge of this Hon'ble Bench reported in 2006 (3) CHN 45. In another decision reported in AIR 1982 SC 83 the Apex Court has observed that if the disposal of an application has an impact on suit, in that circumstances stay is granted. But, in the instant case, as noted above, the matter in issue of the two suits are quite different, parties are also different. So, the basic test that is required to be considered has not been fulfilled in the instant case. Having considered the above circumstances and the nature of the two suits, the learned Trial Judge has rightly observed that the said basic tests, that is, the plaint in one suit is not the written statement of the other suit and the decision in one suit does not operate as res judicate in the other suit, having been failed, the prayer for stay should be rejected. Therefore, I am of the view that the learned Trial Judge has rightly rejected the application for stay. There is no scope of interference with the impugned order. The application fails to succeed. It is, therefore, dismissed.
6
Considering the circumstances, there will be no order as to costs.
Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.
(Prasenjit Mandal, J.)