Himachal Pradesh High Court
Non vs Super Rugs India Llp And Ors on 30 June, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
OMP No. 771 of 2022 in CS No. 110 of 2022
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Reserved on: 22.6.2023
Pronounced on: 30 .6.2023
_____________________________________________________________________
Ram Chand and Ors.
.........Non-applicants/Plaintiffs
Versus
Super Rugs India LLP and Ors.
.......Defendants
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? Yes.
For the Plaintiff: Mr. B.C. Negi, Senior Advocate with Mr. Udit
r Shaurya Kaushik, Advocate.
For the Defendant: Mr. Neeraj Gupta, Senior Advocate with Mr.
Janesh Gupta, Advocate, for
applicant/defendant No.1.
Mr. Atul G. Sood, Advocate, for non-
applicants/defendants No. 2 and 3.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
By way of instant application filed under Section 10 read with Section 151 CPC, prayer has been made by the applicant-
defendant No.1, to stay the Civil Suit No. 110 of 2022 (hereinafter referred to as "the latter suit"), having been filed by the non-applicants-
plaintiffs on the ground that issue raised in the afore suit is directly or substantially involved in the previously instituted suit filed by the applicant/defendant No.1 in the court of Civil Judge (Sr. Div.), Chandigarh.
::: Downloaded on - 04/07/2023 20:33:26 :::CIS -2-2. Pursuant to notices issued in the instant application, non-
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applicants-plaintiffs have filed reply to the application and rejoinder thereto also stands filed on behalf of the applicant-defendant No.1.
3. The facts, which may be relevant for adjudication of the application at hand, are that non-applicants-plaintiffs filed latter suit, seeking therein decree for possession by way of specific performance of contract in respect of suit property on the basis of agreement to sell executed on 5th August, 2018 between Super Rugs India LLP (formally known as Super Rugs India Private Limited) through its designated partners as one party and plaintiffs/non-applicants as other party. By way of suit as detailed hereinabove, non-applicants/plaintiffs have prayed for decree for a sum of Rs. 50,00,000/- as compensation on account of alleged loss of future business as well as alleged loss incurred on account of raising of alleged loans and on account of alleged sale of property in order to purchase the suit property. Besides above, non-applicants/plaintiffs have also prayed for decree for permanent prohibitory injunction as well as mandatory injunction, restraining the applicants-defendants from alienating, changing or encumbering the suit property during the pendency of the suit.
Though, time was given to applicants-defendants to file written statement, but before same could be filed, applicant/defendant No.1 filed the instant application under Order 10 read with Section 151 CPC, to stay the afore suit pending adjudication before this Court on ::: Downloaded on - 04/07/2023 20:33:26 :::CIS -3- the ground that Civil Suit bearing No. 1249-2022 (Registration No. .
2297/11-7-22, CNR registration No. CHCH020022712022 (hereinafter referred to as "the former suit" ) already stands filed by applicant-
defendant in the Court of learned Civil Judge, Senior Division, Chandigarh, against the non-applicants/plaintiffs, praying thereto pass decree for declaration to declare agreement to sell dated 5.8.2018 null and void. Assertions made in the former suit are based on the fact that since non-applicants/plaintiffs in the suit at hand failed to take any steps to fulfill the conditions incorporated in the said agreement to sell and on account of their having failed to perform their part under the agreement to sell, applicant-defendant No.1 had already invoked forfeiture clause, resultantly, earnest money paid by the non-
applicants/plaintiffs under the aforesaid agreement to sell stands forfeited. In the suit filed at Chandigarh, applicant/defendant has further claimed that non-applicants/plaintiffs herein were to fulfill the condition contained in the agreement to sell by directing them to issue cheque in lieu of cash. Since the former suit was prepared and verified by the applicant/defendant No.1 on 11.7.2022 and same was instituted in the Civil Court at Chandigarh on 11.07.2022 i.e. it being filed prior in time than the latter suit having been filed by the non-
applicants/plaintiffs, needs to proceed further, whereas latter suit i.e. present suit having been filed by the non-plaintiffs/plaintiffs deserves to be stayed during the pendency of the suit having been filed by ::: Downloaded on - 04/07/2023 20:33:26 :::CIS -4- applicant-defendant No.1, pending adjudication in the competent .
Court of Law at Chandigarh.
4. It has been further stated in the application that the former suit instituted by the applicant-defendant was taken for adjudication on 12.7.2022, on which date, learned court below made a report of suit having been received by way of an assignment.
Thereafter, it was ordered to be checked and registered and notice of suit was ordered to be issued to the non-applicants/plaintiffs herein, returnable for 29.7.2022. On 29.7.2022, summons issued to the non-
applicants/plaintiffs were not received back after service and as such, Court at Chandigarh, ordered for issuance of fresh summons returnable for 11.10.2022. It has further been stated in the application that non-applicants/plaintiffs have deliberately avoided the service of summons issued in the former suit instituted by applicant/defendant No.1 in the court of Civil Judge (Sr. Div) at Chandigarh, and as such, they have not been served till date.
5. Though, in the application at hand, details with regard to terms and conditions contained in the agreement to sell dated 05.08.2018 as well as violation thereof by the parties to the agreement have been given in detail, but that may not be of much relevance as far as adjudication of the application at hand is concerned, especially when there is no dispute inter-se parties that in both the suits; one before the High Court of Himachal Pradesh; and second in the Court of ::: Downloaded on - 04/07/2023 20:33:26 :::CIS -5- Civil Judge (Senior Division) Chandigarh, issue involved for .
determination is identical and similar. It is also not in dispute that parties to both the suits, as detailed herein above, are also same.
6. Sh. Neeraj Gupta, learned Senior Counsel, representing applicant-defendant No.1, while making this Court peruse provisions contained under Section 10 of CPC, vehemently argued that no court shall proceed with the 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, pending in other Court having jurisdiction to grant the relief claimed. He submitted that since subject matter of latter suit having been filed by the non-applicants/plaintiffs is directly and substantially involved in the previously instituted suit filed by the applicant/defendant No.1 in the court of Civil Judge (Sr. Div.), Chandigarh, the latter suit deserves to be stayed. Mr. Gupta also invited attention of this Court to the provisions contained in Order 16 of CPC, to state that for the determination of any right or interest in immovable property or for recovery of immovable property, suit can be filed in the Court within the local limits of whose jurisdiction the property situates, but proviso to aforesaid provision provides that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant shall be instituted either in the Court within the local limits of whose jurisdiction the property situates or in the Court within local limits of ::: Downloaded on - 04/07/2023 20:33:26 :::CIS -6- whose jurisdiction the defendant actually and voluntarily resides or .
carries on business or personally works for gain. He further submitted that agreement to sell was executed at Chandigarh and consideration/part payment in terms of agreement to sell was also received at Panchkula and as such, the court of learned Civil Judge (Sr. Div.) at Chandigarh has jurisdiction to decide the suit having been filed by the applicant-defendant No.1. In support of his aforesaid submissions, Mr. Neeraj Gupta, Senior Advocate, placed reliance upon the following judgments i.e. National Institute of Mental Health & Neuro Sciences v. C. Parmeshwara, 2005 (2) SCC 256, Radha Devi v. Deep Narayan Mandal and Ors, 2003 (11) SCC 759 and S.P.A. Annamalay Chetty v. B.A. Thornhill, AIR 1931 Privy Council 263.
7. Per contra, Sh. B.C. Negi, learned Senior counsel, appearing for the non-applicants/plaintiffs while refuting the aforesaid submissions made by Mr. Neeraj Gupta, learned Senior Counsel representing applicant/defendant No1, fairly submitted that there is no dispute that in both the suits, issue involved for determination is identical and similar involving same parties, however, while making this Court peruse provisions contained under Section 10 of CPC, he argued that no court shall proceed with the 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, pending in other Court having jurisdiction to grant the relief claimed. He further ::: Downloaded on - 04/07/2023 20:33:26 :::CIS -7- submitted that since in the case at hand, bare perusal of agreement to .
sell, which is subject matter of the dispute, clearly suggests that the same was executed inter se parties at Baddi, District Solan, Himachal Pradesh, coupled with the fact that non-applicants-plaintiffs reside at Panchkula, Haryana, court of Civil Judge (Senior Division), Chandigarh, wherein former suit has been filed by non-applicants-
plaintiffs on same and similar cause of action, has no jurisdiction to grant the relief as prayed for and as such, prayer made on behalf of the applicant/defendant No.1 to stay the latter suit in terms of provisions contained under Section 10 CPC, is otherwise not tenable in law and deserves outright rejection. While making this Court peruse provisions contained under Section 16 of CPC, Mr. Negi, argued that proviso to Section 16 CPC clearly provides that a suit to obtain relief respecting or compensation for wrong to, immovable property held by or on behalf of the defendant, can be instituted either in Court within local limits of whose jurisdiction the property situates or in the Court within the local limits of whose jurisdiction, defendant actually and voluntarily resides or carries on business or personally works for gain. He submitted that since in the case at hand, both the conditions, as stated herein above, are not satisfied, prayer having been made by the applicant-defendant No.1 to stay the latter suit filed by non-applicants/plaintiffs is not maintainable.
::: Downloaded on - 04/07/2023 20:33:26 :::CIS -8-8. Having heard learned counsel for the parties and perused .
material available on record, this Court finds that there is no dispute inter-se parties that dispute raised in the latter suit having been filed by the non-applicants/plaintiffs, is same to the former suit filed before the Court of Civil Judge (Senior Division) Chandigarh involving the same parties.
9. Now, question which remains to be decided is "whether mere filing of latter suit on the issue, which is directly and substantially involved in a previously instituted suit inter-se same parties is sufficient to accept prayer made on behalf of party responsible for filing subsequent suit to stay the former suit or not?"
10. Before exploring answer to aforesaid question of law, this Court deems it fit to take note of previsions contained under Section 10 of CPC which read as under:-
"No Court shall proceed with the 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 23[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 24[India] established or continued by 25[the Central Government 26[* * *] and having like jurisdiction, or before 27 [the Supreme Court]. Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in 24[India] from trying a suit founded on the same cause of action]."::: Downloaded on - 04/07/2023 20:33:26 :::CIS -9-
11. Careful perusal of aforesaid provision of law clearly .
suggests that it consists of two parts; 1.) No court shall proceed with the 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; and 2.) The court wherein suit has been filed should have jurisdiction to grant the relief claimed. In the case at hand, there is no dispute as has been stated herein above that issue involved in both the suits, one in High Court of Himachal Pradesh and other in the Court of Civil Judge (Senior Division) Chandigarh is identical involving the same parties, but there appears to be merit in the contention of Sh. B.C. Negi, leaned Senior counsel representing non-applicants/plaintiffs that Court of learned Civil Judge (Senior Division), Chandigarh, wherein non-applicants/plaintiffs have filed suit prior to the suit having been filed by the non-applicant/plaintiff in this Court, has no jurisdiction to grant the relief. Bare perusal of provisions contained under Section 16 of CPC, as has been extracted hereinabove, clearly reveals that a suit to obtain relief respecting or compensation for wrong to, immovable property, can be instituted either in the court within the local limits of whose jurisdiction the property situates or in the Court within the local limits of whose jurisdiction, the defendant actually and voluntarily resides or carries on business or personally works for gain.
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12. Though, in the instant case, Sh. Neeraj Gupta, learned .
Senior Counsel, while making this Court peruse agreement to sell dated 5.8.2018 vehemently argued that deed of agreement to sell was executed at Chandigarh inter-se parties to agreement and as such, former suit filed by non-applicant/defendant No.1 in the Civil Judge (Senior Division) at Chandigarh, is maintainable, but such plea of him does not appear to be correct for the reason that bare perusal of agreement to sell dated 5.8.2018, clearly reveals that both the parties set their hands on the agreement to sell at Baddi, District Solan, H.P., on the date given in the affidavit i.e. 5.8.2018. Though initial lines of the agreement to sell suggest that same was executed on 5.8.2018 at Chandigarh between Super Rugs India Limited and non-
applicants/plaintiffs namely Sh. Ram Chand, Smt. Sudesh Kumari and Sh. Ketan Kumar, but once there is a specific averment/recital that both the parties have set their hands on the agreement to sell at Baddi, District Solan, Himachal Pradesh, on the date, month and year mentioned in the agreement to sell, it cannot be accepted that agreement to sell was executed at Chandigarh.
13. Mr. Neeraj Gupta, learned Senior Counsel, submitted that one of the witness while putting his signature on the agreement to sell has specifically mentioned Chandigarh, but that fact may not be of much relevance because bare perusal of agreement to sell suggests that apart from one witness namely Mr. Arun Gupta, another witness ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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while putting his signature has given his address of Baddi, District .
Solan, H.P. One Mr. Ajay Kumar, S/o Sh. Hukam Chand, has also given his address of Baddi, District Solan, H.P. Contention of Mr. Neeraj Gupta, learned Senior counsel, that part payment of Rs.51,00,000/- was paid at Panchkula, Haryana, is also not correct as per record because receipt given below agreement to sell dated 5.8.2018 suggests that sum of Rs.51,00,000/- was received by the applicant/defendant No.1 (Rs. 21,00,000/- vide cheque No. 044216 dated 5.8.2018 of Allahabad Bank, Panchkula. Receipt given below agreement to sell nowhere suggests that amount was received in Chandigarh, rather cheque for a sum of Rs.21,00,000/- of Allahabad Bank, Panchkula, was paid, whereas there is no specific mention with regard to place where balance payment of Rs.30,00,000/- was paid in cash. Leaving everything aside, bare perusal of addresses given in the agreement to sell dated 5.8.2018 as well as on the suit having been filed in the Court of leaned Civil Judge, (Senior Division), Chandigarh, clearly suggests that non-applicants/plaintiffs are residents of House No. 475 Sector 10 Panchkula, Haryana. If it is so, court of learned Senior Civil Judge, Chandigarh has otherwise no jurisdiction to grant relief in the subsequent/latter suit having been filed by applicant/defendant. Suit property admittedly situate at Baddi, District Solan, HP, and non-applicants/plaintiffs also reside in Panchkula and as such, on both the aforesaid counts, Court of Civil ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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Judge (Senior Division), Chandigarh has no jurisdiction to grant relief .
as claimed in the former suit filed by the applicant/defendant.
14. Judgments pressed into service by learned senior counsel representing as detailed hereinabove are of no help as far as case of defendants is concerned. Hon'ble Apex Court in National Institute of Mental Health & Neuro Sciences v. C. Parmeshwara, 2005 (2) SCC 256 (Supra) has held 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 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 matter in issue in both the suits, meaning ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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thereby, that the whole of subject matter in both the proceedings is identical.
.
9. In the present case, the appellant had initiated the disciplinary proceedings against the respondent herein on charges of misappropriation of drugs. In the said disciplinary proceedings, the respondent was found guilty of alleged misappropriation of drugs. On the basis of the findings arrived at in the disciplinary enquiry, the respondent herein was removed. The extent of the loss suffered by the appellant, as found in the disciplinary enquiry, was Rs. 1,79,668.46. Being aggrieved by the order of dismissal, the respondent moved the Labour Court. On 29.10.2001, the Labour Court passed an award setting aside the order of removal dated 12.4.1993. Being aggrieved, the appellant instituted writ petition No. 24348/02. The appellant has also instituted civil suit No. 1732/95 for recovery of the loss suffered by it to the tune of Rs. 1,79,668.46 with interest. Thus, as can be seen from the above facts, both the proceedings operated in different spheres. The subject matter of the two proceedings is entirely distinct and different. The cause of action of the two proceedings is distinct and different. The cause of action in filing the said suit is the loss suffered by the appellant on account of the shortage of drugs. On the other hand, in the said writ petition No. 24348/02, the management has challenged the award of the Labour Court granting reinstatement of the respondent
10. As stated above, Section 10 CPC is referable to a suit instituted in a civil Court, The proceedings before the Labour Court cannot be equated with the proceedings before the Civil Court. They are not the Courts of concurrent jurisdiction. In the circumstances, Section 10 CPC has no application to the facts of this case."::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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15. In the aforesaid judgment, Hon'ble Apex Court has .
categorically held that the object underlying Section 10 is to avoid to 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. While interpreting language contained under Section 10 CPC, Hon'ble Apex Court has held 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. Object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying parallel suits between the same parties in respect of same matter and issue. In the aforesaid judgment, Hon'ble Apex Court has categorically held that the fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as a res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits was identical. Hon'ble Apex Court has held in the aforesaid judgment that proceedings before the labour court cannot be equated with the proceedings for Civil Court as they are not the courts of concurrent jurisdiction.
16. There cannot be any quarrel with the aforesaid proposition of law, but issue decided in the aforesaid case was with regard to application of provision contained under Section 10 CPC in proceedings pending before the Labour Court. In the instant case, two ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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parallel suits on the identical issues have been filed by the same .
parties in the different Courts of law and suit filed prior in time (former suit) is required to proceed, whereas latter suit is required to be stayed, but since in the case at hand, Court of Civil Judge (Senior Division) Chandigarh, wherein former suit has been filed, has no jurisdiction to grant relief as prayed for in the suit, prayer made on behalf of the applicant/defendant No.1 to stay the latter suit cannot be accepted.
17. Judgment passed by the Hon'ble Apex Court in Radha Devi v. Deep Narayan Mandal and Ors, 2003 (11) SCC 759, has no application in the case at hand, because in that case, issue was with regard to title. Hon'ble Apex Court in aforesaid case held that since Court is not required to decide the question of title, it can proceed with the trial of eviction suit even if it was filed during the pendency of the title suit involving the same parties as well as the subject matter.
18. Similarly, judgment passed in S.P.A. Annamalay Chetty v. B.A. Thornhill, AIR 1931 Privy Council 263, by the Privy Council, has no application in the given facts and circumstances of the case. In the aforesaid judgment, Privy Council held that where an appeal lies the finality of decree on such appeal being taken is qualified by the appeal and decree is not final in the sense that it will form res-judicata as between the same parties and consequently, where pending an appeal a suit is instituted on the same cause of action and between ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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the same parties, the proper course for the Court of the second action .
is to adjourn the action pending the decision of the appeal in first action.
19. Though there cannot be any quarrel with the aforesaid proposition of law laid down by the Privy Council, which has been re-
affirmed and reasserted on many occasions by the Hon'ble Apex Court but since, in the case at hand, court of Civil Judge (Senior Division) Chandigarh, wherein former suit on the similar issue has been filed by the applicant/defendant, has no jurisdiction to grant relief as prayed for in the former suit, Section 10 cannot be invoked to stay the latter suit filed by non-applicants/plaintiffs.
20. At this juncture, it would be apt to take note of judgment rendered by High Court of Calcutta in Mirta Lina Pr. Ltd v. The Finlay Mills Ltd and Anr, AIR 1982 Calcutta 41, which reads as under:
"21. Having carefully considered the respective submissions made on behalf of the parties, I am satisfied that the contentions of Mr. Kapur, Learned Counsel for the plaintiff Co., is of more substance and must be upheld on the following grounds :--
1. The materials on record evidence [that the matters in issue and/or the subject-matter of the two suits cannot be said to be identical so as to attract the provisions of Section 10. The subsequent and more comprehensive suit, is sought to be stayed, being one primarily for ejectment, whereunder, inter alia, the relief of possession and mesne profits and/or compensation ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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i. e., a claim for money is made, whereas the earlier suit filed in the City Civil Court is patently a title suit limited in .
its scope, merely seeking a declaration that the notice of Aug. 29. 1979 terminating the agreement dated Dec. 26, 1975, is invalid, inoperative and void ab initio. and that the defendant company is not entitled to unilaterally terminate and/or revoke the grant made thereby in favour of the plaintiff mills. The entire field of controversy between the parties, therefore, cannot be held to be substantially the same, as sought to be contended by the Learned Counsel for the defendants.
2. Secondly and the greater hurdle, to my mind, which faces the applicant in obtaining the order for stay under Section 10 of the C. P. C, is that it cannot be lost sight of that the section which merely enacts a rule of procedure, is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, as held in Bepin Behary v. Jogendra Chandra, reported in 24 Cal LJ 514:
AIR 1917 Cal 248, where Chief Justice Mookerjee, speaking for the Court, interpreted the expression "matter in issue"
occurring in Section 10 of the C. P. C. One of the prerequisites of Section 10 being the court in which the subsequent suit instituted or any other court,
whether superior, inferior or co-ordinate. Such a court is a court competent to grant relief claimed in the subsequent (previous ?) suit and the weight of authority supports this interpretation as is the ratio decidendi of several decisions cited, viz., vide. AIR 1933 Cal 887, AIR 1938 Mad 602 and .
To my mind, Section 10 dealing with Court's jurisdiction to proceed to determine a suit is required to be strictly ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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construed and I see no reason for construing the provisions thereof in the manner as suggested by the Counsel for the .
applicants. I am fortified in my views not only by the decisions cited as also by the observation of the learned author Mulla. No decision has been cited or referred to which is contrary to the views expressed. I am, therefore, of the view that Section 10 of the Code has received authoritative interpretation by judicial decisions and/or long way of practice and see no reason to depart therefrom and as such must hold that the meaning "having jurisdiction to grant the relief claimed" occurring in Section 10 of the C. P. C. contemplates the competency of the first court to grant the reliefs claimed in the second suit.
In the instant case, the City Civil Court is undoubtedly incompetent to grant either the decree for possession (such a prayer not being made) and/or a decree for mesne profits as sought herein, as admittedly the subsequent suit valued at Rs. 78,000/- is patently beyond the pecuniary jurisdiction of that Court.
3. Thirdly, the 'matter in issue' contemplated by Section 10 means disputed material questions in the subsequent suit, which are directly and substantially in issue in the previous suit, and matters not in issue cannot be regarded as heard or finally decided so as to operate as res judicata in the subsequent suit. This being so, any decision in the earlier suit cannot non-suit the plaintiff in the subsequent proceedings and the ratio decidendi of the case , is plainly attracted. As observed by the Divisional Bench, it is well- settled that unless an issue is framed and decided by a Court, it cannot operate as res judicata in a subsequent suit between the same parties or their privies.
The other Divisional Bench decision of this Court relied upon Shiva Prosad Agarwalla v. Semi Conductors Limited ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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reported in AIR 1976 Cal 358 is also an authority which lends force to Mr. Kapur's contention that disposal and/or .
adjudication of one issue alone (in the instant case at best notice of Aug. 29, 1979 is invalid and inoperative) would not resolve the other partinent issues, which would necessarily arise in the subsequent and more comprehensive suit, viz., whether the defendant mills are liable to be ejected on any of the grounds alleged and whether any mesne profits and/or damages are payable by them as claimed by the plaintiff company.
Brijlal v. Madhya Pradesh Electricity Board, , is also an authority for the proposition that the entire controversy between the parties in both the suits is required to be finally determined in the earlier suit before the subsequent suit is liable to be stayed on the basis of the earlier decision, on the principle of actual or constructive res judicata. Lastly, so far as the pecuniary jurisdiction of the Court is concerned, Section 8 of the S. V. Act provides that the value as determinable for the computation of court-fees and the value for the purpose of jurisdiction shall be the same. In my view, in computing Court-fees, substance and form of the plaint must be kept in mind and the question of court-
fees payable must necessarily be considered in the light of the allegations made in the plaint and cannot be influenced either by the pleas in the written-statement and by the final decision of the suit on the merits. This being so, from a plain reading of the plaint, the status of the defendants appears to be that of a licensee and the question required to be determined in the suit is whether permissive occupation allowed to the defendant has been terminated and/or put to an end, entitling the plaintiff to a decree for ejectment ? If this be the basis of the plaint, whether substantiated or not, the present suit has been correctly valued on the basis of ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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the reliefs sought attracting Section 7(vi)(b)(i) of the W. B. C. F. Act of 1970 and no other basis of valuation has been .
suggested by the Ld. Counsel for the defendants. The plaintiff, has accordingly valued this claim for the purpose of court-fees and jurisdiction at Rs. 78.000/-. which valuation, to my mind, has not been shown to be an arbitrary assessment capriciously made and thus it is this amount which is required to be taken cognisance of when considering whether the Court's pecuniary jurisdiction is attracted.
21. In Minocher Behramji Damania v. Hema N. Dadachanji and Ors., AIR 1982 Bombay 151, High Court of Bombay has held that for an application under Section 10 CPC, mere identity of the subject matter of the suit is not enough, rather court in earlier suit should also have jurisdiction to grant reliefs claimed in the subsequent suit. Relevant paras No. 6 and 7 of the afore judgment read as under:
"6. In my view the contention of Mr. Variava that it is not enough that there is substantial identity of the subject matter of the suit but that the Court in earlier suit should have jurisdiction to grant the reliefs claimed in the later suit is correct. It is also clear that the Small Cause Court has no jurisdiction to grant the reliefs which are claimed in the City Civil Court suit, under the Presidency Small Cause Courts Act, 1882 of the Bombay Rent Act. In the Small Cause Courts Act amendments were carried out in 1976 which are not relevant as both the suits were filed before the said amendments, By virtue of S. 19 of the Small Cause Courts Act 1882 the Small Cause Courts had no jurisdiction in the Suit for the recovery of immovable property. Suits to obtain an injunction and suits for the recovery of immovable property, suits for declamatory decrees. Small Cause Court has, however, ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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jurisdiction to entertain the suits between the landlord and tenants by virtue of the provisions of the Rent Act and also to .
decide whether the relationship between the landlord and the tenant existed by virtue of S. 39 of the said Act. However, it is clear that the question of jurisdiction under this Special Act can be assumed only when the suit as filed was on the face of it between landlord and tenant. Once the Small Cause Court came to the conclusion that such a relationship did not exist, admittedly it cannot further decide as to what the relationship between the parties was it is therefore, clear that the Small Cause Court does not have jurisdiction to grant relates prayed for in the present suit, the plaintiff where in clearly denies any existence of the relationship of landlord and tenant.
7. In support of his contention Mr. Variava has relied on In the Goods of Mrs. Lilian Singh . Manu Singh v. Muni Nath Singh, ; B. B. Chit Fund v. Ganpat Rai, , Channabasappa v. Kishnan Chand, AIR 1972 Mys 112, As I have independently taken the same view I need not discus these decisions."
22. Reliance is also placed upon judgment rendered by Hon'ble Apex Court in Indian Bank v. Maharashtra State Cooperative Marketing Federation Ltd., 1998 (5) SCC 69, relevant para whereof reads as under:
"Therefore, the word "trial" in section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to 'proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit'. The object of the prohibition contained in section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in ::: Downloaded on - 04/07/2023 20:33:26 :::CIS
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issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal .
with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the later suit with earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section 10 is not used in its widest sense."
23. In the aforesaid judgment, Hon'ble Apex Court has held that provisions contained under Section 10 are required to be interpreted and construed keeping in mind the object and nature of that provision and prohibition to proceed with trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit. Though in the case at hand, issue raised in the latter suit is directly and substantially in issue in a former suit between the same party, but since Court at Chandigarh, wherein former suit is pending adjudication has no jurisdiction to grant the relief, provision contained under Section 10 CPC, cannot be invoked to stay the latter suit having been filed by non-applicants/plaintiffs in this court.
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24. Consequently, in view of the detailed discussion made .
herein above as well as law taken into consideration, this court finds no merit in the present application and the same is accordingly dismissed being devoid of any merit.
June 30, 2023 (Sandeep Sharma),
manjit Judge
r to
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