Himachal Pradesh High Court
Keshav Ram And Others vs Ntpc And Another on 2 November, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
OMP Nos. 408 & 579 of 2021 in Civil Suit No. 44 of 2020 Reserved on: 15.09.2023 Decided on: 2nd November, 2023 .
Keshav Ram and others .......Plaintiffs
Versus
NTPC and another ...Defendants
Coram
of
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the plaintiffs: Mr. Rajnish Maniktala, Senior
Advocate assisted by Mr.
rt Naresh Sharma, Advocate.
For the defendants: Mr. Neeraj Gupta, Senior
Advocate assisted by Mr.
Pranjal Munjal, Advocate.
Virender Singh, Judge
OMP No. 579 of 2021
The plaintiffs-applicants have filed the present
application under Order 6 Rule 17 of the Code of Civil Procedure, (hereinafter referred to as the 'CPC') with a prayer to amend the pleadings in the plaint.
2. The plaintiffs have filed the suit for recovery of actual costs/expenses incurred, on account of damages against the defendants, with the following prayer:-
(A) That a Decree for Rs. 80,76,842/- may be awarded in favour of the Plaintiffs and against the Defendants towards the actual cost/ expenditure 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 02/11/2023 20:39:51 :::CIS 2
incurred by the Plaintiff for construction of the protection wall in front of Hotel Hot Springs. (B) That a Decree for Rs. 20,00,000/- on account of special/ punitive damages may be awarded in favour of the Plaintiff and against the Defendants .
on account of non- performance of duties by the Defendants.
(C) That the Plaintiff may be held entitled to interest @ 12% per annum from December 2019 up to the date of payment.
(D) Any other decree deemed just and proper may also be passed in the facts and circumstances stated hereinabove in favour of the Plaintiff.
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3. By way of present application, it has been prayed by the plaintiffs-applicants that their family member namely, rt Prem Lal Raina, has filed a Civil Suit No. 29 of 2020, titled as Prem Lal Raina and others vs. NTPC and others. The subject matter of the lis, as well as, the suit land in Civil Suit No. 29 of 2020, are facing same danger and threat from the water of reservoir. Both the suits have been filed by the same Counsel and in that process, certain inadvertent mistakes have crept in the pleadings, which have been mentioned in the application, along-with proposed amendments, which are, reproduced as under:-
"Para 12-In this paragraph, similar example of Hotel Hot Springs was quoted, which also faced the similar danger as in the case of present suit. So, this para was copy pasted from civil suit no. 29 of 2020 pertaining to Hotel Hot Springs. However, the word "Plaintiff in para 12 in 15th line before the words "Hotel Hot Springs" was wrongly retained, whereas it was required to be deleted. A copy of plaint in civil suit 29 of 2020 is being annexed as Annexure A-1. As such, this word "Plaintiff i.e." in para 12 in 15thline before the words "Hotel Hot Springs" is required to be deleted. Similarly, the words "in Civil Suit 29 of 2020" are required ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 3 to be inserted after the word "plaintiff" in 2ndlast line of same paragraph. The paragraph after this amendment shall read as follows:
a. That it is submitted that the Hotel Hot Springs is .
situated at a distance of about 230 meters from the Bridge over River Sutlej at village Tatapani and is right at the rim of Reservoir of the Kol Dam Hydroelectric Project. In order to protect the properties on the right bank of the Reservoir, the Defendants constructed a huge protection structure measuring 185 meters in length approximately in the year 2017. The said structure provided protection to the Tatapani- Karsog Road including some private properties and houses of the local residents including the of houses of Shri Buli Chand and Ram Dutt. It would be worthwhile to submit here that immediately after the house of Shri Buli Chand i.e. about 15 meters or so, the property of Hotel Hot Springs is situated. It is surprising rt that the defendants had not considered raising the protection structure for protection of Hotel Hot Springs despite numerous representations, which otherwise was in the similar danger owing to the waters from the Reservoir. Thereafter, the Defendants also raised another protection structure, in front of Narsingh/ Lakshmi Narayan Temple, which is also situated at a distance of about 28 meters from 28 SEP the Hotel Hot Springs on the other side. The said protection structure is about 68 meters in length. It provided protection to the properties around the said Temple. In brief, it can be seen that the Defendants provided protection to the properties before and after Hotel Hot Springs, whereas no such protection structure was raised for the said Hotel. It is submitted that all these properties including the Hotel Hot Springs and suit land are located on the banks of Reservoir and are open to the similar kind of soil erosion and other dangers, to which these properties are exposed. It is submitted that these protection structures were constructed by the defendants after the plaintiff in Civil Suit 29 of 2020 raised such structure for protection of Hotel Hot Springs.
b. That for the reasons submitted in para 'a' supra, para 11 was also copy pasted from the Civil Suit 29 of 2020. However, the word "Plaintiff"" in 15th line was wrongly and inadvertently retained whereas it should have been replaced with words "Hotel Hot Springs". The word "Plaintiff" in 8thline was also wrongly retained whereas it should have been "Hotel Hot Springs" in place of "Plaintiff"
Similarly, the words "according to plaintiff" in 9th and 10th line were required to be deleted. The word "Plaintiff' in ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 4 12thline is required to substituted with "Sh. Prem Lal Raina". As such, after incorporating aforesaid corrections, para 11 shall read as follows:
11. That surprisingly instead of coming forward for protection of the property i.e. the Hotel Hot Spring, the .
Defendants initiated the process for removal of encroachment, i.e. the protection wall over the acquired land in front of the Hotel Hot Spring by way of initiating proceedings under the provisions of the Himachal Pradesh Public Premises Act. As per the complaint, Hotel Hot Springs had raised the protection wall in the acquired land and as such the same was contrary to the provisions of law. By virtue of the order dated 17.3.2017, the possession of sh. Prem Lal Raina by way of of construction of the wall was found to be unauthorized and the possession of the said protection structure was taken by the Defendant authorities. c. That for the same reasons, the words "Plaintiff i.e" before rt the words "Hotel Hot Springs" in 17thline in para 10 of plaint need to be deleted. After deletion, para 10 shall read as under:
10.That since the Defendant authorities were not responding to the requests made, as such, in order to protect the property of Hotel, the owner thereof, who happens to be one of co-owners, had no other alternative than to raise the construction of protection structure by himself. The protection wall had to be raised where the water of reservoir was touching the land. This happened to be the land that was acquired for purposes of reservoir and in front of Hotel Hot Springs. The water of reservoir was only at a distance regularly of nearly ten meters from the property of the hotel. The water in the Reservoir continued to rise and as such, the work of the protection structure was started in the year 2014. As and when the level of water rose by few more feet, the height of the protection wall was again raised so as to protect the property of the Hotel Hot Springs. This process continued over a period of time so as to afford protection to the property of Hotel."
d. That similarly, for the reasons mentioned above, inadvertent typographical mistake has occurred in the prayer clause no. A. The words "Hotel Hot Springs" are required to be replaced with the words "Suit Land". After replacement of these words, the prayer clause shall read as follows:
::: Downloaded on - 02/11/2023 20:39:51 :::CIS 5A. That a Decree for Rs. 80,76,842/- may be awarded in favour of the Plaintiffs and against the Defendants towards the actual cost/ expenditure incurred by the Plaintiff for construction of the protection wall in front of the Suit Land."
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4. All these proposed amendments, in the pleadings, have been sought on the ground that certain typographical errors have crept-in, in the pleadings, inadvertently, as well as, as a result of re-production of certain paragraphs from of Civil Suit No. 29 of 2020. According to the applicants, they came to know about this defect in the pleadings when rt application under Section 10 CPC has been filed by the defendants.
5. On the basis of above facts, a prayer has been made to allow the amendment application.
6. When put to notice, this application has been contested by defendant No.1 by asserting the fact that plaintiff in Civil Suit No. 29 of 2020, namely, Prem Lal Raina is also the same person, who has filed the present suit and his name has been figured in the head-note of the plaint as plaintiff No.4.
7. The application has further been contested by asserting that the assertions in both the suits are same and similar and issues involved in both the suits are also same and similar. In this regard, defendant No.1 has also asserted ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 6 that application, under Section 10 read with Section 151 CPC, has already been moved, which has been registered as OMP No. 408 of 2021.
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8. On the basis of above facts, a prayer has been made to dismiss the application.
9. The plaintiffs filed rejoinder, denying the assertions, as made in the reply.
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10. The case is at the initial stage as issues have yet not been framed in this case. Copy of Civil Suit No. 29 of 2020 rt has also been annexed with the application under Order 6 Rule 17 CPC. The subject matter of present suit has been described in para 1, which is reproduced as under.
"1. That the land bearing Khata No. 78 min. Khatauni No. 153 min, Khasra No. 592, measuring 00-05-02 hectares, Khata No. 41 min, Khatauni No. 63 min, Khasra No. 564, measuring 00-03-14 hectares, Khata No. 78 min, Khatauni No. 153 min, Khasra No. 592, measuring 00-05-02 hectares, 2/7thshare in Khata No. 17, Khatauni No. 21, Khasra Nos. 424, 570, 601, 684, 748, measuring 00-16-15 hectares, 20/984 share in khata No. 17 min, Khatauni No. 21 min, Khasra No. 584, measuring 00-01-00 hectares, Khata No. 78 min, Khatauni No. 153 min, Khasra No.569, measuring 00-13-11 hectares situated at Mohal Tatapani, Tehsil Karsog, District Mandi, Himachal Pradesh, is recorded in the ownership and possession of plaintiffs as per Jamabandi for the year 2009-10. Similarly, 265/4169 shares in land bearing Khata No.. 29 min. Khatauni No. 35 min, Khasra No. 593. measuring 00-05-02 hectares ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 7 situated at Mohal Tatapani, Tehsil Karsog. District Mandi, Himachal Pradesh, is recorded in the ownership and possession of plaintiff 2, 3, 5, 6 as per Jamabandi for the year 2009-10. At the same time, 147/4169 shares and .
266/4169 shares in land bearing Khata No. 29 min. Khatauni No. 35 min, Khasra No. 593, measuring 00-05-02 hectares situated at Mohal Tatapani, Tehsil Karsog. District Mandi, Himachal Pradesh, is recorded in the ownership and possession of plaintiff 1 and 4 respectively as per of Jamabandi for the ear 2009-10. The property may be referred as the suit land."
11. In para 2 of Civil Suit No. 29 of 2020, it has been rt mentioned that plaintiff Prem Lal Raina, who is one of the co-owners of the suit land, has constructed a hotel on the suit land under the name and style 'Hotel Hot Springs'. The said suit has been filed through Sh. Naresh Verma, Advocate.
12. Considering the said factual position, this Court is of the view that prayer, as made in the application, is liable to be accepted as the procedural law is meant for advancement of justice and not to hamper the stream of the same. No prejudice is going to be caused to the defendants, if the proposed amendment is allowed, which is nothing, but, to correct the clerical mistakes, crept-in, in the pleadings and it will also not change the nature of the lis.
::: Downloaded on - 02/11/2023 20:39:51 :::CIS 813. Considering all these facts, the application under consideration is allowed.
14. Amended plaint, annexed with the application, is .
ordered to be taken on record. The application stands disposed of.
OMP No. 408 of 2021The defendants-applicants have filed the present of application, under Section 10 CPC, on the ground that, the proceedings of the present suit are liable to be stayed as rt plaintiff No.1 has filed a Civil Suit No. 29 of 2020, titled as Prem Lal and others vs. NTPC and others, which is pending adjudication before this Court.
2. It is further case of the applicants that in para 7 of the plaint, it has been mentioned that land comprised in Khata No. 77 min, Khatauni No. 123, Khasra Nos. 288 and 289 measuring 00-09-06 hectares and 01-03-08 hectares situated at Mohal Tatapani, Tehsil Karsog, District Mandi, H.P. is jointly owned by the plaintiff, upon which, a hotel, under the name and style 'Hotel Hot Springs', has been constructed. All the allegations, in both the suits, are stated to be same and the suit has been filed on the ground that the defendants have failed to discharge their duty in raising ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 9 protecting wall to secure the property of the plaintiff/non-
applicant.
3. In nut-shell, it is the case of the applicants that Civil .
Suit No. 29 of 2020 has been instituted prior in time, as such, the proceedings of the present suit are prayed to be stayed as per provisions of Section 10 CPC. The prayer to stay the proceedings in the present suit has been made on of the ground that the allegations in both the suits are same and matter in issue is similar.
rt Hence, a prayer has been made to allow the application.
4. When put to notice, this application has been contested by the plaintiffs/non-applicants, on the ground, that the provisions of Section 10 CPC are not applicable as the subject matter is different, parties are different, both the suits have been filed on different cause of action and relief in both the suits is also different.
5. In order to elaborate their stand, the description of the subject matter of lis in Civil Suit No. 29 of 2020, as well as Civil Suit No. 44 of 2020 has been reproduced.
6. It is their further case that the parties are different in Civil Suit No. 29 of 2020. The Civil Suit No. 29 of 2020 has been filed only by Mr. Prem Lal, who is stated to sole owner ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 10 of Hotel Hot Springs, whereas, the present suit has been filed by the plaintiffs, who are co-owners of the suit land.
7. On the basis of above facts, a prayer has been made .
to dismiss the application.
8. The applicants have sought the relief, in this case, of staying the proceedings of the present suit under the provisions of Section 10 CPC. The provisions of Section 10 of CPC are reproduced as under:-
"10. Stay of suit.-- No Court shall proceed with the rt 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] have 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]."
9. In order to stay the proceedings, the applicant has to fulfill the following four conditions:-
i) The matter in issue in second suit is also directly and substantially in issue in the first suit;
ii) The parties in the second suit are the same for parties under whom they or any of them claim litigating under the same title.
iii) The Court, in which, the first suit is instituted is competent to grant the relief in the subsequent suit and;
iv) Previously instituted suit is pending either in the same Court in which the subsequent suit is ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 11 filed or in any other Court in India or any Court beyond the limits of India establish or continued by the Central Government Central and having like jurisdiction.
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10. Before staying the proceedings in the subsequent suit, the above four conditions are liable to be fulfilled. The details of the subject matter of both the suits have been reproduced as under:-
of Civil Suit No. 29 of 2020
1. That the land bearing Khata No. 77 min. Khatauni No. 123, Khasra Nos. 288 & 289 measuring 00-09-06 rt hectares and 01-03-08 hectares respectively, situated at Mohal Tatapani, Tehsil Karsog. District Mandi, Himachal Pradesh, is recorded in the ownership and possession of Shri Biptu, Son of Shri Hirdu to the extent of 710 shares out of 34980 shares as per Jamabandi for the year 2009-10. After death of Shri Biptu, the ownership rights of the suit land devolved upon his legal heirs namely, Hem Dass, Keshav Ram, Charan Dass, Prem Lal, Umesh Kumar - Sons and Smt. Champa Devi - Widow by way of mutation so entered in the revenue records. The property may be referred as the suit land.
2. That Shri Prem Lal Raina, who is one of the co-owner of the suit land, constructed a Hotel on the suit land in the name and style of Hotel Hot Springs. The said Hotel is registered under the provisions of Himachal Pradesh Tourism Development & Registration Act 2002. The Hotel has 22 rooms including the facilities of Restaurant, Health Club and Hot Water Springs as well. The Hotel has been catering to the variety of tourists and is known for its beautiful location and the quality of hospitality services.
Civil Suit No. 44 of 2020 (present suit) "The suit land in the present Suit is situated in Khata No. 78 min, Khatauni No. 153 min, Khasra No. 592, measuring 00-05-02 hectares, Khata No. 41 min, Khatauni No. 63 min, Khasra No. 564, measuring 00-03- 14 hectares, Khata No. 78 min, Khatauni No. 153 min, Khasra No. 592, measuring 00-05-02 hectares, 2/7th ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 12 share in Khata No. 17, Khatauni No. 21, Khasra Nos. 424, 570, 601, 684, 748, measuring 00-16-15 hectares, 20/984 share in Khata No. 17 min, Khatauni No. 21 min, Khasra No. 584, measuring 00-01-00 hectares, Khata No. 78 min, Khatauni No. 153 min, Khasra No. 569, .
measuring 00-13-11 hectares, 265/4169 shares in land bearing Khata No. 29 min, Khatauni No. 35 min, Khasra No. 593, measuring 00-05-02 hectares, 147/4169 shares and 266/4169 shares in land bearing Khata No. 29 min, Khatauni No. 35 min, Khasra No. 593, measuring 00-05- 02 hectares situated at Mohal Tatapani, Tehsil Karsog, District Mandi, Himachal Pradesh."
11. From the above fact, this Court is of the view that of very first condition with regard to the fact that matter in issue in the second suit is also directly or substantially in rt issue in the first suit, is not fulfilled in the present case.
12. Merely, the fact that the plaintiff in Civil Suit No. 29 of 2020 is also one of the plaintiffs, in the present suit, does not fulfill the second condition, as referred to above. The best test for the application of Section 10 CPC is that the judgment and decree of the previously instituted suit, if operate as res-judicata in the second suit, then, the proceedings in the subsequent suit filed could be stayed.
13. The subject matter in both the suits is not identical, as such, basic requirement of Section 10 CPC is not fulfilled.
In this regard, it is apt for this Court to rely upon the decision of the Hon'ble Apex Court in National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 13 (2005) 2 SCC 256. The relevant para 8 of the judgment is reproduced as under:-
"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 of 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 rt 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 contra-distinction 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."
14. The primary object of provisions of Section 10 CPC is that no person should be vexed twice with regard to the same matter in issue and there should be no conflicting judgments in two parallel suits in respect of the same matter in issue.
15. In the present case, the subject matter of both the suits is totally different and the parties are also not the same, then, the learned counsel for the applicant could not ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 14 satisfy the judicial conscience of the Court as to how the proceedings in the present case could be stayed under the provisions of Section 10 CPC.
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16. The Hon'ble Apex Court in Gupte Cardiac Care Centre and Hospital vs. Olympic Pharma Care (P) Ltd.
(2004) 6 SCC 756 has elaborately discussed the provisions of Section 10 CPC. The relevant para Nos. 4 and 5 of the of judgment are reproduced as under:-
"4. It has not been disputed at the Bar that the two rt suits arise out of the same transaction. Cause of action of one party arrayed as plaintiff would be its defence in the suit where it is arrayed as defendant. Though there are two plaintiffs and two defendants in the suit at Nashik while there is only one plaintiff and one defendant in the suit at Delhi but there is substantial identity of the parties in the two suits. The issues arising for decision would necessarily be the same. Only one of the two suit can be decreed. The decree in one suit in favour of the plaintiff in that suit would entail the dismissal of the other suit. It cannot, therefore, be denied that the two suits deserve to be heard and tried in one Court. That would avoid the possibility of any conflicting decrees coming into existence. And certainly the duplication of evidence, oral and documentary both, would be avoided. The parties and the Courts would save their time and energy which would needlessly be wasted twice over.
5. The suit at Nashik has been instituted first in point of time. By reference to Section 10 of the CPC, the trial of the suit at Delhi, being the latter suit, shall be liable to be stayed. For the exercise of its discretionary jurisdiction under Section 25 of the Code of Civil Procedure, 1908 the only consideration which is relevant is 'expediency for ends of justice'. The court will have regard to and respect for the rule enacted in Section 10 of the Code. Of course, the considerations such as which is the place where most of the evidence is available, convenience of the parties and witnesses, which one of the two places is more convenient to ::: Downloaded on - 02/11/2023 20:39:51 :::CIS 15 access and attend and so on are also the factors to be kept in view and may in an appropriate case persuade this Court to direct a transfer of case in departure from the rule underlying Section 10 of the Code. All would depend on the facts and circumstances of a given case.
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So far as the present cases are concerned, we deem it proper to transfer the suit at Delhi to the Court at Nashik for the purpose of hearing and decision thereat. In doing so we are following the ordinary rule as we do not find any factor or consideration relevant for making a departure therefrom."
17. In view of the above, when the parties to the present of suit are not same nor they are litigating the same title, as well as, the subject matter of both the suits is different, as rt such, conditions of Section 10 CPC are not fulfilled in the present suit.
18. Considering all these facts, the application under consideration is dismissed.
Civil Suit No. 44 of 2020The case is now adjourned for filing amended written statement to the amended plaint, if any, to come up on 23.11.2023.
November 02, 2023 ( Virender Singh )
(naveen) Judge
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