Duraikannu and 2 others vs D. Sampath and 20 others

A.K. Rajan, J.—Application No. 385 of 2001:- C.S. No. 484 of 1997 has been filed for a declaration that the plaintiffs are the lawful joint

owners of the suit property of 38 cents of vacant land situate in New S. No. 52/1 of Koyambedu Village; to set aside the alienation''s purported to

have been done by the defendants; for a direction that the defendants and their agents to deliver vacant possession of the suit property. In this

Application No. 385 of 2001 has been filed for amendment of the plaint. It is stated in the affidavit as follows:

The husband of the 14th respondent Ananthanarayann by sale deed dated 29.8.1982 had alienated his holdings of 61 cents of land situate in new

survey No. 52/2A. part of survey No. 52 of Koyambedu in favour of 17th respondent and 22nd respondent. But in the schedule northern

boundary has been referred deliberately and falsely as the land of the vendor in Survey No. 52. He is not the owner of the northern boundary. The

17th and 22nd respondents are putting up construction in their land; they encroached upon the suit property. Therefore, the applicant filed

Application No. 2691 of 2000 to implead 22nd respondent as party defendant in the suit. While so, by oversight necessary allegations with regard

to the amendment of the plaint has not been made. Therefore, certain amendments are to be made in the plaint.

17th and 22nd respondents have filed counter-affidavits which are identical. In those, it is stated as follows:

At the time of filing the suit, the plaintiff knew that the defendants purchased the plot and had fenced it and it was in their possession for the past 18

years and in spite of that, the plaintiff did not implead these respondents. Therefore, they are not entitled to seek for amendment of the plaint.

These petitioners, alongwith five others, have purchased the suit property in S. No. 52/2A and they are in possession and enjoyment of the suit

property. They have acquired title even by adverse possession. It is not correct to state that the applicant failed to raise the allegations by

oversight. Therefore, the applicants are now trying to introduce a new cause of action.

The affidavit filed by the 17th defendant has not been duly attested. Only the affidavit filed by the 22nd respondent has been attested.

No valid reasons or grounds have been set out in the counter to reject the amendment. In as much, these defendants have already been

impleaded, necessary amendments cannot be refused. Further, the proposed amendment does not in any way is alter the suit. Hence, this

Application No. 385 of 2001 is allowed.

Application Nos. 1436 and 1437 of 2000:

These applications have been filed to transfer the two suits in O.S. No. 911 of 1991 and O.S. No. 5634 of 1989 on the file of the City Civil

Court to the file of this Court to try alongwith this suit - C.S No. 484 of 1997.

In both the applications, a common affidavit has been filed. It is stated in the affidavit that,

The subject matter of the sun in the three suits is one and the same. All the plaintiffs and the defendants in O.S. No. 5634 of 1989 and O.S. No.

911 of 1991 are grouped as defendants in C.S. No. 484 of 1997. Therefore, all the three suits have to be tried together to avoid multiplicity of

proceedings.

In the common counter filed by one of the defendants, it is stated that the suits pending in the City Civil Court should not be transferred to this

Court, because the parties would lose one opportunity of appeal available to them. Further, only the later suit should be transferred to be tried

along with the earlier suit. O.S. No. 1579 of 1985 is earlier in point of time when it was filed in Poonamallee which was subsequently transferred to

City Civil Court. Madras and re-transferred as O.S. No. 5634 of 1989. Further, the suit should be tried by the Court of the lowest rank.

Therefore, the suits should not be transferred to this Court. The 15th defendant, in his counter, has stated that the defendant -1, 3 to 7 and 12 filed

another suit - O.S. No. 911 of 1991 on the file of City Civil Court for declaration of title and possession. It has been posted alongwith O.S. No.

5634 of 1989; they should not be transferred to the High Court, because they will lose one appeal.

Respondents 18 to 21 filed counter staling that the cause of action in both the suits lire different. The cases in the City Civil Court are pending

for more than seven years. If these suits are transferred, it would be unfair and unjust and it would hamper the speedy disposal of the suit.

16th respondent has filed a counter stating mainly that they will lose one opportunity of appeal.

Counsel for the applicants argued that the present suit C.S. No. 484 of 1997 is for declaration of title of the plaintiff wherein all the plaintiffs

and defendants in C.S. No. 5634 of 1989 as well as C.S. No. 911 of 1991 are included. Further, O.S. No. 5634 of 1989 is only for permanent

injunction. O.S. No. 911 of 1991 is for declaration of title. All these suits are relating to the very same property of 38 cents. Therefore, in order to

give a complete disposal, it is necessary that all the suits are tried together. Therefore, the two suits pending in the City Civil Court are to be

transferred to this Court.

Mr. A.K. Kumarasamy, Counsel for the respondent, in this case, argued that the suits filed in the City Civil Court is earlier in point of time.

Therefore, u/s 10of Code of Civil Procedure, the later suit has to be stayed in as much as the issue involved in both the suits are one and the same.

The counsel referred to the judgment in Sohal Engineering Works Vs. Rustam Jehangir Vakil Mills Co. Ltd., . It has been held as follows:

The words, directly and substantially in issue are used in contradistinction to the words incidentally or collaterally in issue. That means that the

Section would apply only if there is identity of the matter in issue in both the suits meaning thereby that the whole of the subject matter in both the

proceedings is identical and not merely one of the many issues which arise for determination in the two suits. That, however, does not mean that all

the issues must be identical that is, the subject matter need not be the same in every particular. To that extent. Section 10differs from Section

11which engrafts the doctrine of res judicata. u/s 11even if one of the two issues is common to both the suits, the decision on that issue would

operate as res judicata in any suit subsequently decided between the same parties so far as that issue is concerned.

The Counsel argued that the decision given in the City Civil Court will be binding the parties in the present suit; plaintiff herein are tracing title only

through the parties to the suit before the City Civil Court either through the plaintiffs or defendants in those suits; the applicants have no

independent right other than their predecessors-in-title and therefore, the decisions rendered in the City Civil Court will be binding on the plaintiffs

in C.S. No. 484 of 1997; there is no necessity to transfer; the plaintiffs have purchased the property while the suit was pending. Therefore, they

cannot ask for joint trial, parties to the earlier suit need not defend the subsequent purchasers pendente lite.

Mr. Subramaniam, learned counsel appearing for some of the respondents supported the view of plaintiffs in C.S. No. 484 of 1997; these

respondents are the vendors of the plaintiff. According to him, the suits are to be transferred for joint trial.

The counsel for the plaintiffs in C.S. No. 484 of 1997 Mr. V.R. Gopalan argued the provisions of Section 10C.P.C. cannot be applied to the

present case. He referred to a number of cases that determines the principle which govern the application of Section 10C.P.C. He argued that the

case on hand requires consolidation of all the cases, so that a binding decision can be obtained so that the dispute will come to an end once for all.

He argued that in Harinarain Choudhary and Others Vs. Ram Asish Singh and Others, it has been held that

In deciding whether two or more suits should be consolidated or not, the whole question is whether or not, in the long run, it will be expeditious

and advantageous to all concerned to have the two suits tried together as analogous cases. Where it appears that there is sufficient unity, or

similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question. It is convenient to have them

tried as analogous cases.

In P.P. Gupta Vs. East Asiatic Co., Bombay, it has been held that

The principles enunciated above should be borne in mind when interpreting Section 10C.P.C. for the purpose of determining whether the language

of this Section prohibits the consolidation of two suits pending in the same Court between the same parties even if such consolidation is otherwise

eminently desirable. In my opinion, it was not the intention of the legislature to pass a law which would bar such consolidation. As stated in an

earlier portion of this Judgment, the object of Section 10is to prevent different courts of concurrent jurisdiction from simultaneously trying two

parallel suits in respect of the same matter in issue and also to avoid multiplicity of litigation in the same Court.

But the principle of consolidation in no way conflicts with this purpose of Section 10; on the contrary, it preserves and promotes it. A too literal

construction of the words, ""shall proceed with"" in S.10would, therefore, lead to the absurd result that parties would be condemned to multiplicity

of litigation--the very thing which it is the purpose of Section 10to avoid....................

In my view, therefore, the words, shall not proceed in any suit in Section 10C.P.C. were intended to bar the separate trial of any suit in which the

matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties in the same Court or in any other

Court. But these words do not apply to the simultaneous hearing of a later and an earlier suit, after consolidation of the two, if the matter in issue in

both is directly and substantially the same. Section 10was not intended to take away the inherent power of the Court to consolidate in the interests

of justice in appropriate cases, different suits between the same parties in which the matter in issue is substantially the same. There is no conflict in

the principle and purpose underlying Section 10and the inherent power of the Court to consolidate different suits in appropriate cases. Both are

meant to prevent multiplicity of litigation between the same parties. Any interpretation of Section 10which takes away the power of the Court to

consolidate suits would hinder the policy and purpose of Section 10itself.

The counsel for the plaintiff in C.S. No. 484 of 1997 relied upon the following judgments:

This Court in the case reported in C. Murugesa Mudaliar Vs. C. Balasundarammal, has held:

Section 10requires that the matter in the issue in the latter suit should be directly and substantially in issue in the earlier and that the use of this

definite article suggests that the rule will not apply where only a matter in issue is common

Therefore, the counsel argued that the issues before this Court are not identical with that of these issues before the City Civil Court may be some of

the issues arc common; therefore, the issues should be consolidated; Plaintiffs counsel also argued that where the other Court is not competent to

grant relief in the subsequent suit, Section 10has no application. In support of that, he relied upon a decision reported in Somasundaram Chettiar

Vs. A. Venkata Subbayya, , wherein it has been held,

The simple point raised in this petition is whether the Subordinate Judge of Anantapur was bound as a matter of law u/s 10C.P.C. to stay the trial

of O.S. No. 22 of 1937 pending on his file in view of the earlier institution of another suit (O.S. No. 280 of 1936) on the file of the District Munsif

of Tiruppur. The only point argued before me is that it is not necessary for the application of S. 10C.P.C. that the court in which the earlier suit was

instituted should be competent to decide the subsequent suit which is to be stayed. On this point, I am of opinion that the weight of authority is

against the contention of the Petitioner. Even a grammatical construction of S. 10C.P.C. as it stands, really does not support this view. The words

relief claimed should, in my opinion, apply to the suit which is to be stayed and not to the earlier suit. This is the construction adopted in several

decisions the effect of which is embodied in Mullah''s Commentary on S. 10. C.P.C. as follows: The third essential condition for stay u/s 10C.P.C.

is that the Court in which the previously instituted suit is pending must be a Court of jurisdiction competent to grant the relief claimed in the

subsequent suit

The counsel for plaintiff cited another decision in Sankhla Industries Vs. Hiralal Pukhraj, in which it has been held as follows:

In the previously instituted suit, the prayer was for rendition of accounts simpliciter whereas in the subsequently instituted suit, the plaintiff claimed a

consolidated sum of Rs. 48,882.70 paise as determined by him. Thus it is clear that though the plaintiffs in the two suits sought different reliefs but

they did so on identical facts and the Munsif in whose Court the previous suit had been instituted was competent to grant the relief claimed by the

plaintiff in the subsequently instituted suit as admittedly the accounts had not been settled. On the other hand, in the present case, the plaintiff-non-

petitioner has claimed a specific sum, i.e. Rs. 6680.30 paise on the ground that the accounts between the parties had been settled, and the

defendants had also signed the accounts, after settling the same. There is no denying the fact that the suit as framed by the non-petitioner on the

basis of settled accounts for Rs. 6680.30 is beyond the jurisdiction of the Munsif, Beawar and cannot be tried by him. The natural corollary of this

is that the Munsif, Beawar in whose Court the petitioners had instituted the suit for rendition of accounts is not competent to grant the relief claimed

by the non-petitioner plaintiff in the present suit.

He cited another decision in Mirta Lina Pr. Ltd. Vs. The Finlay Mills Ltd. and Another, it has been held,

I am therefore, of the view that S. 10of 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 S.10of the C.P.C.

contemplates the competency of the first court to grant the reliefs claimed in the second suit.

In Brijlal and Co. Vs. Madhya Pradesh Electricity Board, , it has been held,

The short point to be decided in this application is whether the issues in the Calcutta High Court are directly and substantially an issue in the

Jabalpur Suit between the same parties. Admittedly, the petitioner''s suit was instituted earlier than the Calcutta High Court Suit and the parties are

the same. The legal principles underlying Section 10of the CPC are well established and it is not necessary to reiterate the large number of

decisions on the point. In Order that the petitioner succeeds, it is not necessary that the issues in the two suits, must be identical or that the subject-

matter of the controversy in both these suits must have to be the same in all its particulars. Apart from the disputes and differences between the

parties in the two suits, the Court should find out whether the suit which is to be stayed would be disposed of on the basis of the decision in the

other suit on the principles of actual or constructive res judicata. The entire object of the said section is lo avoid multiplicity of the proceedings on

the controversy between the parties and also conflict of judgments between the two Courts on the same issues.

The counsel for the plaintiffs, Mr. V.R. Gopalan argued that on a perusal of all the judgments, if the Court in which the earlier suit is pending, is

incapable of deciding the issue, then notwithstanding that a subsequent suit has been filed before the higher forum, the earlier suit shall be

transferred. Therefore, the present suit filed by the plaintiff is comprehensive in the sense that all the parties, viz., three wings of the original owners''

successors are impleaded in this case. Therefore, if a decision is given in this case, that will once for all resolve the dispute between all the parties

who may have any interest in the suit property. The lower courts are not competent to give a relief claimed by the plaintiffs before the High Court in

this case. Therefore, it is just and necessary that the suit before the City Civil Court shall be transferred to the file of this Court to try along with the

present suit.

As per the decisions cited above, Section 10of the CPC has received authoritative interpretation by the judicial decisions. Section 10C.P.C.

contemplates the competency of the first Court to grant the reliefs claimed in the second suit and also the Court should find out whether the suit

which is to be stayed would be disposed of on the basis of the decisions in the other suit on the principles of actual or constructive res judicata .

When the above principles are applied lo the facts of the present case, it is clear that the plaintiff in the suit before the High Court are purchasers

pendente lite i.e. they claim their right only through the parties to the suit before the City Civil Court. Therefore, they do not have any separate or

independent right otherwise than the right of the parties before the suit pending in the City Civil Court. Therefore, these plaintiffs are bound by the

decisions given by the Court in that case. Further, the case pending before the Civil Court is for declaration of title of the parties concerned. By no

stretch of imagination, it can be said that, that Court has no competence to decide the title of the parties to the suit Only if the City Civil Court is

not competent to decide the issue and to grant relief, that can be transferred to this Court for consolidation. Therefore, the suit pending in the City

Civil Court need not be transferred. The decisions that may be rendered in that case will be constructive res judicata so far as this case is

concerned. So, a separate decision need not be given in this case. Therefore, relief of transfer the suit in this transfer application cannot be granted.

At the same, being the party pendente lite nothing prevents the plaintiff herein to get themselves impleaded in the suit pending before the City

Civil Court. The fact that the suit was originally filed in the Poonamallee Sub-Court as early as 1985 and subsequently, it was transferred to City

Civil Court due to change of jurisdiction and renumbered as O.S. No. 5634 of 1989 cannot be ignored. The plaintiffs herein have purchased the

property from the parties of the suits only subsequent to 1990. In the result. Application No. 385 of 2001 for amendment of the plaint is allowed.

Application Nos. 1436 and 1437 of 2000 for transfer of the suits are dismissed. Before closing this case, this Court place on record the fact that

Mr. V.R. Gopalan appearing for the applicants had collected all the relevant and most important aspects and placed them before this Court and

thus assisted this Court.