Karnataka High Court
H Ravishankar vs The Commissioner on 24 September, 2012
Author: Ravi Malimath
Bench: Ravi Malimath
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
ON THE 24th DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.12944 OF 2011 (GM-CPC)
Between :
Sri. H.Ravishankar
S/o P.Hanumanthaiah,
Aged about 51 years,
Residing at No.114,
3rd Main, Sampige Layout,
Near Prashanth Nagar,
Bangalore - 560 079. ... Petitioner
(By Sri. J.N.Rajanna Shetty, Adv.)
And :
1. The Commissioner
Bangalore Mahanagara Palike,
Bangalore.
2. The Chief Secretary
Govt. Of Karnataka
Vidhana Soudha,
Bangalore - 560 001.
3. The Deputy Commissioner (Estate)
Bangalore Mahanagara Palike,
Bangalore.
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4. The Joint Director of Land Records
And City Survey, K.R.Circle,
Bangalore - 560 001.
5. The Assistant Revenue Officer
Bangalore Mahanagara Palike,
Rajajinagar Ward,
Bangalore.
6. Dasashram International Centre Trust
Having it's office at Purandarapura,
Rajajinagar 6th Block,
Bangalore - 560 010.
Represented by
K.Rama Pai. ... Respondents
(By Sri. J.Jayaprakash, Adv. For R1, R3-R5
M/s.Amit Mandgi Associates, Advs. For R6
R2-Served)
This Writ Petition is filed under Articles 226 & 227
of the Constitution Of India, praying to quash/set aside
the impugned order passed on I.A. in
O.S.No.2289/2004, dated 7.2.2011, on the file of
Addl.City Civil Judge, Bangalore Vide Annexure-F.
This writ petition coming on for Preliminary
Hearing in 'B' group, the Court made the following:
ORDER
The petitioner filed a suit seeking that he is entitled to effect the katha pertaining to the suit schedule property in pursuance to the decree dated 3 01.10.2002 passed in O.S. No.4559/2002. During the pendency of the suit, he filed an application under Section - 10 of the C.P.C., seeking to stay further proceedings of the suit till the disposal of the appeal before the Land Tribunal. The Trial Court vide the impugned order rejected the application. Hence, the present petition.
2. The learned counsel for the petitioner contends that the decree sought for is based on the decree passed in O.S. No.4559/2002, that is a suit for partition. The property that devolved upon the plaintiff was a tenanted property. However, in a parallel proceeding pertaining to tenancy, on an order of the Tribunal, which was challenged before this Court in W.P. No.25402/1992, the matter was remanded to the Tribunal for a fresh consideration. Therefore, when the Tribunal passes an order, it would necessarily have to decide with regard to tenancy. In case the tenancy is to be held valid, it is 4 only then the decree passed in O.S. No.4559/2002 can be executed. If the tenants fail in the plea before the Tribunal, in view of the fact that the decree is based on the tenancy right, necessarily, a decree in O.S.No.2289/2009 cannot be passed. Therefore, it is just and necessary to allow the application.
3. On the other hand, the learned counsel appearing for the respondent no.6 defends the impugned order. He contends that the provisions of Section - 10 are not applicable to the case on hand. He also placed reliance on the judgment of the Supreme Court reported in the case of National Institute of Mental Health And Neuro Sciences vs. C. Parameshwara
- AIR 2005 SC 242. He contends that no ingredients of Section - 10 has been made out in the present case. Hence, the petition requires to be rejected.
4. The counsels for other respondents are absent. 5
5. On hearing the counsels and on examining the impugned order, I'am of the considered view that the petition requires to be allowed. The effect of the decree to be passed in the suit in question is directly relatable to the findings to be recorded by the Land Tribunal. Any findings to be recorded therein would necessarily have a direct bearing on the suit in question. Therefore, to hold that the provisions of Section - 10 are not applicable to the case on hand cannot be accepted.
6. The reliance placed on the judgment cited supra, particularly para - 8, reads thus:
"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 6 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 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 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 7 matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical."
Therefore, it is pleaded that the matter pending before the Tribunal is not identical to the matter pending before the Land Tribunal.
9. On hearing the counsels, I'am of the considered view that, in the instant case if the proceedings in the suit are not stayed, the same would lead to absurd results. Even assuming the said proceeding is not stayed the decree becomes inexecutable. Therefore, the Tribunal would have to necessarily pass an order on the finding recorded by the Land Tribunal. Therefore, it is eminent that until and unless the Land Tribunal records a finding, the suit in question cannot be proceeded. The plea made in the application is also to the said effect. 8
10. Under these circumstances, even though the provisions of Section - 10 are not prima-facie applicable to the case on hand, I'am of the considered view that, the inherent powers of this Court would necessarily have to be invoked. It is in order to prevent not only the abuse of the process of the court, but also if the proceedings in the suit are not stayed till the disposal of the matter before the Land Tribunal, the same would lead to miscarriage of justice.
11. Hence, the inherent powers require to be exercised in this case. Such powers are intended especially for such cases. If strictly only the provisions of Section - 10 of C.P.C., are applied, the same would result in injustice. Therefore, to do justice to all parties, the inherent powers require to be exercised. That is why an inherent power exists only because an inappropriate provision of law is relied upon, cannot be a reason to deter from doing justice.
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12. For the aforesaid reasons, the petition is allowed. The trial of O.S. No.2289/2004 before the Additional City Civil Judge, Bangalore is stayed till the disposal of the appeal before the Land Tribunal, Bangalore North Taluk in LRF No. 654, 655, 682/1979-
80.
13. In view of the long pendency of the matter before the Tribunal, the counsel submits that the matter may disposed off within six months. The submission is noted. The Tribunal is directed to dispose off the claim petition within a period of six months from the date of receipt of the copy of this order.
All contentions are kept open.
Sd/-
JUDGE JJ