Himachal Pradesh High Court
Veepul Lakhanpal vs Of on 7 April, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CMPMO No. 57 of 2016.
Judgment reserved on: 1.4.2016.
Date of decision: April 7, 2016.
Veepul Lakhanpal .....Petitioner.
Versus
of
Smt. Pooja .....Respondent.
Coram rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes For the Petitioner : Mr. Harsh Khanna, Advocate.
For the Respondent : Mr. Anirudh Sharma, Advocate.
Tarlok Singh Chauhan, Judge.
This petition under Article 227 of the Constitution of India at the instance of the husband takes exception to the order passed by learned Additional District Judge-1, Solan on 14.1.2016 whereby his application under Section 10 read with Section 151 of the Code of Civil Procedure (for short the 'Code') for staying the proceedings has come to be dismissed.
2. The facts giving rise to the present petition may be noticed.
The proceedings pending before the learned trial Court (Additional District Judge-1, Solan) have been instituted by the respondent under Section 12 of the Hindu Marriage Act (for short 'Act') wherein the petitioner moved application under Section 10 of CPC on the ground that earlier petition instituted by the petitioner under Section 13 of the Act was already pending adjudication before the learned District Judge, Shimla. The respondent had not only put in appearance, but had also Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 20:04:18 :::HCHP 2 raised similar plea regarding impotency of the petitioner and had further raised certain other contentions, which were similar to the one set out in .
the present petition.
3. It was further averred that the relief sought by the respondent in the impugned proceedings pending before the Court at Solan had already been sought by her in the proceedings under Section of 13 of the Act pending before the learned District Judge, Shimla.
Therefore, she could not be allowed to set up same ground in two rt different proceedings pending before the two Courts of competent jurisdiction on the same cause of action. It was further averred that the findings in one petition would operate as resjudicata in another proceeding and in case both the proceedings are allowed to continue, then there is every likelihood of contradictory findings, being recorded by the two Courts on the same matter.
4. The learned Court below dismissed the application by holding that the provision of Section 10 of CPC would not be applicable to the present case as the necessary ingredients of the Section were not attracted in the present case.
I have heard learned counsel for the parties and have also gone through the records of the case carefully.
5. Section 10 of the Code of Civil Procedure 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 undr 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. ::: Downloaded on - 15/04/2017 20:04:18 :::HCHP 3 Explanation. - The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same .
cause of action."
6. The object of Section 10 CPC 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 of fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, the same would operate as rt 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 subject matter in both the proceedings is identical.
7. The mere common grounds in the previous suit and subsequent suit would not attract the Section 10. The basic purpose and underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts given by two Courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding(s).
8. It is not in dispute that the respondent in the proceedings instituted by the petitioner under Section 13 of the Hindu Marriage Act ::: Downloaded on - 15/04/2017 20:04:18 :::HCHP 4 has only filed her reply and has not raised a counterclaim therein. It is further not in dispute that the grounds taken by her in the petition .
instituted by her under Section 12 of the Act are quite similar to those raised as a defence in the proceedings instituted by the petitioner under Section 13 of the Act.
9. Section 23-A of the Act, confers a right upon the of respondent to seek a decree by way of counter claim while filing reply to a petition seeking decree of divorce or judicial separation rt or restitution of conjugal rights. The aforesaid section inter alia provides that in any proceedings for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the aforesaid ground, but may also make a counter claim for any relief under this Act on that ground and the Court may grant such a decree.
10. Section 23-A only applies to the proceedings for the following reliefs:
(i) divorce;
(ii) judicial separation and ;
(iii) restitution of conjugal rights.
But this Section has no applicability insofar as the relief claimed by the respondent under Section 12 of the Act is concerned. Even otherwise, no decree of annulment of marriage can be passed in favour of the respondent by the Court on the ground of impotency in the proceedings instituted by the petitioner under Section 13 of the Hindu Marriage Act at Shimla wherein the respondent has raised a specific plea of impotency. Such decree of annulment of marriage can only be passed in a substantive petition under Section 12 of the Act which is pending ::: Downloaded on - 15/04/2017 20:04:18 :::HCHP 5 before the Court at Solan. Thus, the scope, ambit and result of both the petitions are entirely different. Moreover, the grounds for filing of an .
application under Section 12 of the Act and the grounds for filing of an application under Section 13 of the Act are entirely different.
11. The learned counsel for the petitioner would then argue that the petition filed by the respondent pending before the learned of Court at Solan be transferred to Shimla by exercising the power under Section 21-A of the Act. I am afraid that even this prayer of the rt petitioner cannot be acceded to.
12. Section 21-A reads thus:
"21-A. Power to transfer petitions in certain cases.- (1) Where -
(a) a petition under this Act has been presented to a District Court having jurisdiction by a party to marriage praying for a decree for a judicial separation under Section 10 or for a decree of divorce under Section 13; and
(b) another petition under this Act has been presented thereafter by the other party to the marriage praying for a decree for judicial separation under Section 10 or for a decree of divorce under Section 13 on any ground, whether in the same District Court or in a different District Court, in the same State or in a different State, the petitions shall be dealt with as specified in sub-section (2).
(2) In a case where sub-section (1) applies, -
(a) If the petitions are presented to the same District Court, both the petitions shall be tried and heard together by that District Court;
(b) if the petitions are presented to different District Courts, the petition presented later shall be transferred to the District Court in which the earlier petition was presented and both the petitions shall be heard and disposed of together by the District Court in which the earlier petition was presented. (3) In a case where Clause (b) of sub-section (2) applies, the Court or the Government, as the case may be, competent under the Code of Civil Procedure, 1908 (5 of 1908), to transfer any suit or proceeding from the District Court in which the later petition has been presented to the District Court in which the earlier petition is pending, shall exercise its powers ::: Downloaded on - 15/04/2017 20:04:18 :::HCHP 6 to transfer such later petition as if it had been empowered so to under the said Code."
.
13. This Section has been added by Section 14 of the Marriage Laws (Amendment) Act, 1976 and makes provision for a case where both the parties to a marriage file separate petitions against each other either in the same Court or in different Courts in the same State or in of different States. It provides that in such a case both the petitions shall be tried by the District Court in which the first petition was filed and the rt petition by the other party shall be transferred to that Court by the Government or by the High Court in accordance with the provisions of the Code of Civil Procedure relating to transfer. These provisions are contained in Sections 22 to 25 of the Code and apply to petitions for judicial separation and for divorce but not to petitions under Sections 9, 11 or 12. In other words, if one petition is for judicial separation or divorce but the other is for restitution or for nullity, this Section will not apply.
14. In view of the above discussion, I have no difficulty in concluding that the order passed by the learned Court below is just and legal. Having said so, I find no merit in this petition and the same is accordingly dismissed, so also the pending application(s), leaving the parties to bear their own costs.
April 7, 2016. (Tarlok Singh Chauhan),
(GR) Judge.
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