Calcutta High Court (Appellete Side)
Smt. Susmita Bhowmik vs Smt. Renuka Chandra on 10 May, 2016
Author: Indrajit Chatterjee
Bench: Indrajit Chatterjee
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION Present : The Hon'ble Justice Indrajit Chatterjee C.O. 1483 of 2013 Smt. Susmita Bhowmik
-vs-
Smt. Renuka Chandra
For the petitioners : Mr. Koushik Dey.
For the opposite party : Mr. Biswajit Basu
Mr. Subrata Basak
Heard on : 10-05-2016.
Judgment on : 10-05-2016
Indrajit Chatterjee, J.:- This is an application under Article 227 of the Constitution of India wherein the Order No. 57 dated 25-02-2013 as passed by the Xth Bench, City Civil Court at Calcutta, in Money Suit No. 45 of 2004 has been assailed before this Court.
The present petitioner before this Court is the sister-in-law (Nanad) of Renuka Chandra, i.e. the plaintiff/opposite party. One deed of trust was made by one Chooni Lal Chunder, the predecessor in interest of the parties, as back as on 14-12-1940. After the death of that Chooni, his son, Jatindra, cancelled that trust deed as per deed of revocation dated 10-08-1969. Whether the revocation was permissible or not, is the subject matter of C.S. No. 320 of 2003 now pending before the Original Side of this Court wherein both the petitioner and the defendants are parties. One order of injunction was passed by the Single Bench of this Court and thereafter, it was modified by the order of the Division Bench dated 31-08-2006 vide APO No. 208 of 2004.
There is reflection in the order dated 31-08-2006 that learned Advocate appearing on behalf of the present plaintiff/appellant made a submission before that Court that the trust was also created for the benefit of the plaintiff/opposite party and that some provisions be made for her maintenance.
Thereafter, the Money Suit No. 45 of 2004 was filed by the present opposite party/plaintiff praying for a money decree of Rs. 2,00,000/-. The defendant/petitioner appeared before that Court and, inter alia, submitted that unless that C.S. No. 320 of 2003 is disposed of, let there be a stay in respect of further proceeding of that Money Suit. The matter was heard and the impugned order was passed which was not in favour of the present petitioner and as such, the prayer for stay was rejected. Thus, this revisional application has been filed.
Mr. Dey led special emphasis to the submission of Mr. Mitra made before the Division Bench. It is better to quote it below :
"Mr. Mitra, learned senior Advocate appearing for the appellant submitted that the trust was meant for the benefit of the beneficiary named therein. If this kind of a blanket restriction is put, then in the absence of Jatindra his widowed daughter-in-law would be without any means to maintain herself".
Mr. Dey submitted that if this submission is believed, then actually the plaintiff had no money in her hand to give loan to the present petitioner/defendant. He further submitted that the High Court will decide in C.S. No. 320 of 2003 as to whether Renuka had money to give it to Susmita. It is further claimed by Mr. Dey that the said money to the tune of Rs. 2,00,000/- was given to Susmita by Reneka permanently from the family fund.
Mr. Basak to counter all these, submitted before this Court that actually the Money Suit No. 45 of 2004 is simpliciter a money suit and the litigation pending before the High Court cannot be a stumbling block from proceeding of that Title Suit. He further submitted that the issues before that two Courts are different, however, the parties may be same. Mr. Basak further submitted that actually Rs.2,00,000/- was paid by Renuka to Susmita from her own fund and not from the fund of the trust property. He further contended that C.S. 320 of 2003 is a suit for declaration, injunction etc. and as such, the existence of that suit cannot be a bar from the proceeding of that Money Suit. He further submitted that in the Money Suit already the evidence of the plaintiff has been closed and in that C.S. No. 320 of 2003 issues are yet to be framed. It was the argument of Mr. Basak that the Money Suit is based on a promissory note whereas the claim before this Court in the Civil Suit is regarding the revocation of the trust deed. He concluded by saying that Renuka has other income apart from the trust property.
In reply, it has been submitted by Mr. Dey that the argument of Mr. Basak that this plaintiff/opposite party has other source of income was not agitated either before the Trial Court or before this Court in that Civil Suit. He cited the ingredients of Section 10 of the Civil Procedure Court to convince this Court that if the issues are substantially same, then the latter Suit may be stayed by the Court.
Thus, on hearing the parties, this Court is of the opinion that in this application under Article 227 of the Constitution of India, this Court will have to answer as to whether the present Money Suit pending before the City Civil Court is to be stayed because of existence of a prior Suit, being C.S. No. 320 of 2003.
The main ingredients of Section 10 can be stated below thus:
1) That there must be two suits pending in Courts;
2) That in both the suits, the matter in issue must be directly and substantially in issue between the same parties; and
3) Or between the 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) having jurisdiction ..............
The question whether Renuka had money to make advance to Susmita is to be decided by the learned Trial Court, i.e. the City Civil Court. Whether the admission made by Mr. Mitra in that APO can bind Renuka or estopped her from claiming that she had no money to be paid to Susmita is to be considered by the learned Trial Court.
The Suit pending before this Hon'ble Court is regarding the revocation of the trust deed and some consequential reliefs. In that Suit, there is nothing to attract the notice of the court that out of that trust money actually Renuka gave Rs. 2,00,000/- to Susmita. That matter cannot be a subject matter of that Civil Suit pending before this Court. The suit pending in City Civil Court is simpliciter a money suit and the Trial Court will decide whether the plaintiff had the capacity to pay that much of money to the defendant. For that reason, the Court will not have to wait for the decision of the Civil Suit pending before this court. This Court is satisfied that even though in both the suits, the parties are same but the issues are not directly and substantially the same before both the courts, they are totally different.
This being my observation, I am not at one with Mr. Dey that the order passed by the learned Trial Court can be set aside. Thus, the order impugned is hereby affirmed.
The revisional application, being devoid of any merit, is dismissed on contest.
There will, however, be no order as to costs.
The learned Trial Court will try to decide the Money Suit, which is already pending for more than 12 years, as early as possible without being influenced by any observation made by this Court while disposing of this Civil Revision.
Office is directed to communicate this order to the learned Trial Court at once.
Parties will also be at liberty to communicate this order to the learned Trial Court.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
(Indrajit Chatterjee, J.)