Calcutta High Court (Appellete Side)
Smt. Asima Das (Pan) & Ors vs Smt. Abharani Bhattacharyaa & Ors on 31 July, 2025
2025:CHC-AS:1434
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
Present:-
HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.
CO 2684 OF 2013
SMT. ASIMA DAS (PAN) & ORS.
VS
SMT. ABHARANI BHATTACHARYAA & ORS.
For the Opposite
Parties : Mr. Tanmoy Chowdhury, Adv.
Ms. Ritoprita Ghosh, Adv.
Last heard on : 25.06.2025
Judgement on : 31.07.2025
CHAITALI CHATTERJEE DAS, J. :-
1.This revisional application is directed against an order dated 15.3.2013 passed by Learned Civil Judge (Junior division) Additional Court, Hooghly in Title suit No. 28 of 2009 and renumbered as Title Suit No. 48 of 2010 where by the petition filed under section 10 of Code of Civil Procedure on 30.9.2012, as filed by the defendant/Opposite Party here in has been allowed.
2. Heard the submissions of both the learned advocates and perused the written notes of argument as filed by the respective parties. The petitioners as plaintiffs instituted, a suit for declaration, injunction, etc. being Title suit No. 28 of 2009 before the learned 1st court of Civil Judge (Junior division), Hooghly against the present Opposite Parties, alleging inter-alia that the properties mentioned in the schedule of the suit originally belonged to Gopal @ Page 1 of 7 2025:CHC-AS:1434 Golap Chand Pan and Guiram Pan. Sudhir Panchal Pan sons of Gopal Chand Pan had 4 anna share and remaining 8anna shares belongs to Nidhi Pan and Adhir Pan, both sons of late Guiram Pan and each of them had 4 anna , share thereof. After demise of Guiram Pan, Sudhir Pan became the owner of the 8 annas share, and accordingly in the C. S records of rights, the suit properties appertaining were recorded in the names of Sudhir, Safa, Nidhi, and Adhir, but in the R.S record of rights in plot number 1741, .46 Shatak was recorded in the name of one Karunamoy Bhattacharya being the predecessor of the defendant which has been challenged as erroneous, collusive and without any basis.
3. One Title Suit No. 116 of 1981 was filed by the predecessor of the defendants/Opposite Parties namely Shanti Bhattacharya against the present plaintiffs and also against pro forma defendant no.6 which was subsequently numbered as Title suit number 186 of 198.During pendency of the said suit, the plaintiff Karunamoyee Bhattacharya died, accordingly his legal heirs were substituted as plaintiffs. The plaintiffs of that suit and defendant of the T.S no 28 of 2009 obtained an ex-parte order. The petitioners being the defendants of that TS No.116/81 after being apprised of the ex-parte order against them filed the Title Suit No. 78 of 2004 where the defendant in their written statement disclosed about the previous suit, and filed the application for amendment which was rejected by the Learned Court.
4. Being aggrieved, hereby the plaintiff/petitioner preferred a revisional application being C.O number 4215 of 2006 before the High Court and the co- ordinate Bench of this court made the observation that "the plaintiffs could have taken steps for filing a separate suit if the plaintiff is to set aside the ex- Page 2 of 7
2025:CHC-AS:1434 parte decree on the ground of fraud". Accordingly, the present suit is filed for declaration being T.S No 28 of 2009 that the ex-parte order and decree passed in Title Suit No. 186 of 1991 is void, illegal, inoperative, and not binding upon the plaintiffs. Further declaration that plaintiffs are the absolute owners of the suit property, and they have 16 annas share therein with further declaration that the alleged sale deed dated 12.5.1934, allegedly executed and registered by Satta Charan Ghosh and the Deed number 282 dated 12.5.1934 executed by Binoy Krishna Ghosh in favour of Karunamoy Bhattacharya, where illegal, in operative void and not binding upon the plaintiffs.
5. The defendant/Opposite Party entered appearance and filed a petition under Section 10 read with Section 151 of the Code of Civil Procedure with a prayer to stay the Title Suit No. 48 of 2010. On 15.3.2013, the Learned Trial Court allowed the said application under section 10 of the Code of Civil Procedure and the said Title Suit No. 28 of 2009 subsequently renumbered as Title Suit No. 48 of 2010 was stayed till the disposal of Title Suit No. 78 of 2004.
6. It is submitted by the learned advocate, appearing on behalf of the petitioner that the Title Suit No. 78 of 2004 was decreed and an appeal filed by the petitioner is pending for adjudication before the learned Court of District Judge Hooghly. It is further submitted that the prayer of Title Suit No.48 of 2010 is different from Title Suit No 78 of 2004 and the later was filed pursuant to the observation made in order dated 13/5/2008 in C.O number 4215 of 2006.
7. The Learned Advocate appearing on behalf of the Opposite Party argued the issues of both 78/.The petitioners about had previous knowledge of ex-parte decree since the dispute throughout was with regard to the recording of Page 3 of 7 2025:CHC-AS:1434 names in the record of rights .The plaintiffs/petitioners despite having full knowledge in order to delay the proceeding filed the application for amendment under Order 6 Rule 17 CPC to incorporate the prayer for cancellation of deed of sale after the suit reached at the stage of peremptory hearing . The T.S No. 78 of 2004 has been decreed against the present petitioners on 30 September 2015, for which a Title Appeal no.149 of 2015 is pending before the learned District Judge, Hooghly, therefore, both the suits being title suit number 78 of 2004 and 28 of 2009 involved the same parties and the same subject matter, and since appeal is a continuation of the suit therefore, if the second suit is not stayed it would lead to further complications and multiplicity of proceedings. Accordingly, prayed for dismissal of the revisional application.
8. From the above facts and circumstances and the submissions advanced by the counsels it is evident that Title Suit No.78 of 2004 was filed by the present petitioners/plaintiffs for declaration, injunction etc. against the opposite parties. The earlier Title Suit filed by the present petitioners being T.S NO.186 of 1991 was decreed ex-parte in the year 1992. An amendment application to incorporate this fact was filed by the present petitioners in 2005 as they came to learn about such facts only in the year 2004 from the written statement as filed by the defendant/Opposite Parties. The said application was turned down by the learned court against which revisional application was filed being C.O number 4215 of 2006 and a coordinate bench of this Court, vide an order dated 13.5.2008 refused to entertain the said revisional application and observed that Page 4 of 7 2025:CHC-AS:1434 'If the plaintiffs/petitioners want to set aside the expert decree on the ground of fraud, collusive etc. They could have taken steps for filing a separate suit to that effect. But in the present case, In consideration of the pleadings of the parties, I hold that unless and until the ex-parte decree passed in title suit number 186 of 1991 is set aside, the same remains a valid one. It was further observed that the proposed amendment is not at all formal in nature and is not at all to include any subsequent events.'
9. The contentions of the petitioners that in terms of this observation, they filed the subsequent suit being Title Suit No.28 of 2009 against the present opposite parties has been filed for declaration that the ex- parte decree and order passed in T.S No. 186 of 1991, void, illegal, in operative and not binding upon the plaintiffs cannot have any basis since the observation of the coordinate bench of this court was never meant to give a liberty to file a fresh suit by the petitioners on the self-same issues, but only an observation made which could have been followed by the petitioners.
10. It is now settled law that the object to incorporate section 10 in the code of civil procedure is to avoid two parallel proceedings or trials over the same issue by two courts and also to avoid two conflicting findings on issues which are directly and substantial any issue in the earlier suit. It was observed in the decision of National Institute of Mental Health and others versus C. Page 5 of 7 2025:CHC-AS:1434 Parameshwara 1 'that 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 keywords 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 any issue in both the suits, meaning, thereby, that the whole of subject matter in both the proceedings is identical."
11. On careful perusal of the plaint filed in Title Suit No. 28 of 2009 it is clear that the record of rights since the beginning was in the name of one Karunamoya Bhattacharya as well as the in the name of Sudhir Supaal, Nidhi, and Adhir and for that reason, Shanti Bhattacharya filed the title suit No.116 of 1981 against the present plaintiffs and pro forma defendant No.6, renumbered as T.S No.186 of 1991 and the said suit was decreed ex parte on 15.4.1992 against the present petitioners/plaintiffs of T.S No.28/09. The T.S No. 78 /2004 was filed after that and it reached at the peremptory hearing when the petitioners tried to incorporate certain facts by way of amendment, which was not entertained and was affirmed by this High Court. On a cursory note on the prayer made in this Title Suit No. 28 of 2009, it can be seen that the petitioners/plaintiffs not only prayed for declaration about fraud practised in obtaining the Ex-parte decree but also prayed for a declaration of their absolute ownership of the suit property and for declaration of the deeds to be 1 AIR 2005 SC 242 Page 6 of 7 2025:CHC-AS:1434 void. It goes without saying that the issues in both the suits are otherwise same in nature since when the suit was filed in the year 1981 where also the prayer made for declaration about the absolute ownership of the petitioners in respect of the suit property. The present suit in this regard is the third suit on the same issue. Moreover the T.S No. 48 of 2010 is decreed and an appeal is pending before the learned, District judge Hooghly filed by the petitioners against the same. Therefore by filing the T.SNo. 48/10 the petitioner practically wanted to reopen another round of litigation as the previous two suits were decreed against them .So the learned court rightly passed the order of stay o0f the subsequent suit on the ground of possibility of contradictory decision between the same parties and on same issues.
12. Therefore, considering the entire fact and circumstances of the case this Court, find no merit in this revisional application and any reason to interfere with the order passed by the learned trial Court
13. Hence this revisional application is dismissed.
14. No order as to costs.
15. The Order passed by the Learned Civil Judge (Junior division) Additional Court, Hooghly is hereby affirmed.
16. Urgent certified copy if applied by any of the parties to be supplied subject to observance of all formalities.
(CHAITALI CHATTERJEE DAS,J.) Page 7 of 7