Andhra HC (Pre-Telangana)
M. Venkata Ratna Reddy vs V. Mohammed Reddy And Ors. on 17 November, 2003
Equivalent citations: 2004(3)ALT559
JUDGMENT D.S.R. Varma, J.
1. This revision is filed challenging the order and decree dated 29-7-2003 passed by the court of Principal Junior Civil Judge, Kurnool in I.A.No. 1212/2003 in O.S.No. 598/2001.
2. By the impugned order, the court below allowed the I.A. filed by the defendants under Section 10 of C.P.C. and thereby stayed the suit till the disposal of A.S.No. 1589/2001, which is filed challenging the judgment and decree dated 22-6-2001 in O.S.No. 79/1992. Aggrieved by the staying of the suit, the plaintiff in the suit filed this revision.
3. For the sake of convenience, the parties shall be referred to as per their array in the suit.
4. The factual matrix is that earlier the defendants 1 to 3 herein and two others instituted a suit in O.S.No. 79/1992 on the file of Principal Senior Civil Judge, Kurnool for delivery of possession against the present plaintiff and nineteen others. The said suit was dismissed on 22-6-2001 and challenging the said judgment and decree, the defendants filed A.S.No. 1589/2001 on the file of this Court and the same is pending. Subsequently, the plaintiff who was the 2nd defendant in the earlier suit in O.S.No. 79/1992, filed the present suit in O.S.No. 598/2001 on 30-6-2001 for permanent injunction. The evidence in the present suit was completed and the suit is at the stage of arguments. At that stage, the defendants filed the present petition under Section 10 of C.P.C. for stay of the present suit till the disposal of A.S.No. 1589/2001 on the ground that the item No. 2 of the earlier plaint schedule property in O.S.No. 79/1992 and the item No. 2 in the plaint schedule of the present suit in O.S.No. 598/2001 is one and the same and the contentions in the earlier suit and the present suit are also one and the same. In other words, according to the defendants, the parties, issues and the property involved in the earlier suit and in the present suit are one and the same. Accepting the contention of the defendants, the court below by the impugned order, stayed the present suit. Hence, the revision by the plaintiff.
5. To avoid confusion, the suit in O.S.No. 79/1992 will be referred to as 'the earlier suit' and the suit in O.S.No. 598/2001 as 'the present suit'.
6. Now it is necessary to examine Section 10 of C.P.C. and the relevant portion is extracted as under for ready reference:
"No Court shall proceed with the trial of any suit in which the matter in suit between the same parties, or between parties under whom they are 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.
Explanation:......."
7. From the above section, it is clear that no court shall proceed with the subsequent suit if the following conditions are satisfied:
(a) The issue involved in the earlier suit must be directly and substantially in issue in the later suit;
(b) Both the suits must be between the same parties or their representatives: and
(c) The earlier suit, which is pending must be instituted in any court having jurisdiction to grant the relief claimed.
8. Now it is necessary to examine the facts and circumstances of the case to find out whether the three conditions stipulated under Section 10 of C.P.C. are satisfied in order to stay the present suit.
9. It is to be noted that the earlier suit was filed for delivery of possession on the ground that some registered gift deed was fabricated in collusion with one V. Narayanamma, the widow of late V. Ramakrishna Reddy and upon the application of the succession laws, it was averred that the plaintiff in the earlier suit was entitled for delivery of possession from the defendants therein.
10. From the above pleadings it is clear that the main relief sought for was simply delivery of possession, basing on certain rights of title and the principles of succession and also on the ground that possession was with the defendants therein by virtue of fabrication of certain documents. In other words, though the relief sought for was delivery of possession, indirectly the title was in issue. However, this Court is not expressing any opinion as to what was the incidental or collateral issue and direct and substantial issue in the earlier suit, inasmuch as the same has to be ultimately decided by this court in A.S.No. 1589/2001.
11. Coming to the later suit in O.S. No. 598/2001, the prayer sought for was permanent injunction. From the plaint averments it could be seen that the relief of permanent injunction is sought mainly on the grounds of possession and dismissal of the earlier suit. Of course there is an incidental reference to the title also. As already pointed out, in the later suit also whether the issue of title would be decided as an incidental issue or as a substantial issue is not yet known, inasmuch as the trial has to be completed and the judgment has to be pronounced.
12. Another aspect to be noted is that the parties to the earlier suit and the later suit are only partially same. The sole plaintiff herein is the defendant No. 2 among twenty others in the earlier suit.
13. Furthermore, the suit schedule property in both the suits is also not one and the same, and of course only one item i.e., item No. 2 of the earlier suit relating to Ac.1.25 cents is one among three items in the plaint schedule property of the later suit.
14. Therefore, the rights of all the parties in both the suits are different and the subject matter of the suits is also not entirely common.
15. Therefore, in my considered view, all the conditions prescribed under Section 10 of C.P.C. are not satisfied in order to apply the prohibition contained in the said section.
16. In the decision relied on by the counsel for the plaintiff- petitioner, a learned Single Judge of this Court under similar circumstances in K. Satyanarayana v. P. Veeraju', relying on various judgments held at paragraph No. 7 that:
"There is no doubt that certain common issues do arise in both the suits but as already pointed out supra for Section 10 U.P.C. to apply, there must be identity of subject matter and mere fact that one of the questions in issue is the same as in the other suit would not make the subject matter identical. If that is so, the provisions of Section 10 CPC are not attracted to the facts of the case and the application filed by the defendants under Section 10 CPC should be held to be incompetent."
17. Coming to the case on hand, as already pointed out, the subject in issue in both the the suits is identical only with regard to one item of the properties mentioned in the schedules in both the suits. All the issues and parties in both the suits are also not common. That apart, the relief sought in both the suits is also different. As already pointed out, which is the substantial question and which is the incidental question in both the suits, with regard to title or possession is not yet decided and both the suits are pending at different stages.
18. Further significant factor to be noted is that, the defendants allowed the trial of the later suit to go on, and only at the stage of arguments, the present application is filed. In my considered view, this application is definitely at the belated stage. It is also to be noted that, when the defendants have the knowledge that the issues in the earlier suit and the later suit are common in all fours, proper application under Section 10 of C.P.C. could and should have been made at the threshold.
19. Apart from the above legal position, as already pointed out, the conduct of the defendants in filing the present I.A. at the fag end of the trial cannot be appreciated.
20. Viewed from any angle, I am of the considered view, that the ingredients of Section 10 of C.P.C. are not satisfied and hence, I do not find any valid ground for staying the later suit and accordingly the impugned order of the court below is set aside and the revision is allowed. No costs.