Madhya Pradesh High Court
Upendradutt Alias Upendranath Pandey vs Sudhirdutt Pandey on 9 January, 2020
Equivalent citations: AIRONLINE 2020 MP 369
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Writ Petition No. 17957 of 2015
Parties Name Upendradutt @ Upendranath Pandey
Vs.
Sudhirdutt Pandey and others
Bench Constituted Singble Bench
Judgment delivered by Hon'ble Shri Justice Vishal Dhagat.
Whether approved for Yes/No
reporting
Name of counsel for parties For petitioner: Shri R.P. Agrawal,
learned Senior Counsel with Shri Pranjal
Agrawal, Advocate.
For respondent No.1: Shri Atul
Choudhary, Advocate.
Law laid down Significant paragraph numbers (O R D E R) Pronounced on :09.01.2020
1. Petitioner has filed the present writ petition challenging the impugned order dated 16.09.2015, contained in Annexure P/9. The said order has been passed by the Third Additional District Judge, Satna (M.P.) in Civil Suit No.7-A/2014.
2. Learned trial Court on the basis of plaint and written statement has framed issues on 29.04.2011. Learned trial Court has framed issue No.11 that whether the suit filed by the plaintiff is to be stayed till earlier Civil Suit No. 233-A/2008, filed by the petitioner, is decided. The said issue was decided by the trial Court as preliminary issue vide its impugned order dated 16.09.2015 and Civil Suit No.7-A/2014 was stayed till decision in Civil Suit No.233-A/2008. Learned trial Court held that Civil Suit No.233-A/2008 was filed on 12.10.2008 for declaration of title and for possession over part of Aaraji No.221/1, admeasuring 4961 sq. ft. On obtaining copy of the documents, petitioner learnt about partition deeds dated 13.12.1963 and 06.08.2005. He was not a party in the partition deed dated 13.12.1963 and therefore, same is not binding upon him. It was further held by the trial Court that earlier suit was filed on basis of partition deed dated 13.12.1963 to declare him owner of part of Aaraji No. 221/1 and pull down the house built on that land and also to get possession over the same. It was held that subject matter of both the suits is in respect of partition deeds dated 13.12.1963 and 06.08.2005 and the disputed Aaraji No. is 221 and raqba is 0.21 acre out of total 0.78 acre. On basis of aforesaid findings, learned trial Court held that Section 10 CPC is applicable in the case and Civil Suit No.7- A/2014 is stayed till decision in earlier suit No. 233-A/2008.
3. Learned Senior Counsel appearing for the petitioner submitted that relief claimed by plaintiff in Civil Suit No.82- A/2009 is to declare registered deeds executed on 13.12.1963 and 06.08.2005 to be null and void. Further, relief was sought that mutation effected between defendants No. 1 and 2 may also be declared to be as null and void. Plaintiff may be declared to be owner in possession over Khasra No. 221, area 0.21 acre situated in Village Kolgaran Badhaiya Tola, District Satna. Further, relief was sought that defendants be restrained from interfering with the possession of plaintiff directly or indirectly over Khasra No.221, raqba 0.21 acre. In Civil Suit No.233-A/2008, plaintiff Sudhirdutt sought relief that he may be declared owner of Khasra No. 220 and 221/1 situated in Village Kolgawan, Tehsil Raghurajnagar, District Satna and also the house built on Khasra No. 221/1, admeasuring 4961 sq. ft. be declared to be in ownership of plaintiff and said house be demolished and vacant possession be delivered to plaintiff Sudhirdutt. Further, the plaintiff be allowed mesne profits of Rs. 3000/- per annum. It is further submitted that the cause of action in Civil Suit No.233-A/2008 arose on 01.01.2001 and in Civil Suit No.82-A/2009 cause of action arose on 18.09.2008. Learned Senior Advocate argued that matter in both the suits is not directly and substantially in issue and therefore, the order passed by the trial Court is bad in law.
4. Learned Senior Counsel relied on the judgment of the Apex Court reported in (2013) 4 SCC 333, Aspi Jal and another vs Khushroo Rustom Dadyburjor. In the said case, Hon'ble Apex Court held that Section 10 of CPC will be attracted if the entire subject matter in controversy is same between previous suit and subsequent suit.
5. In another judgment reported in (2005) 2 SCC 256, National Institute of Mental Health & Neuro Sciences vs C. Parameshwara, it is held by the Apex Court that 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 is to avoid recording of conflicting findings on issues, which are directly and substantially in issue in previously instituted suit. The suits which are pending must be between the same parties and of same matter in issue. The fundamental test laid down by the Apex Court is whether the final decision is being reached in previous suit, such decision would operate as res-judicata in subsequent suit.
6. From going through the plaints, it is found that subject matter in controversy in the both the suits is not the same. The relief claimed in both the suits is also different. Decision rendered in first suit will not bar second suit as per principle of res- judicata. Therefore, Section 10 of CPC will not be attracted in the case. Learned trial Court has committed an error of law in deciding issue No. 11 vide its impugned order dated 16.09.2015. In this view of the matter, the writ petition filed by the petitioner is allowed and impugned order dated 16.09.2015, contained in Annexure P/9, is hereby quashed. The Court below may proceed with the trial in both the civil suits.
7. C.C. as per rules.
(Vishal Dhagat) Judge vkt Digitally signed by VINOD KUMAR TIWARI VINOD KUMAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482002, st=Madhya Pradesh, TIWARI 2.5.4.20=c3a773822dd60058372dba984a8595fa55 6ca32c10ef613cc76f9f59c60d4d85, cn=VINOD KUMAR TIWARI Date: 2020.01.13 17:16:07 +05'30'