Durgamadhab Das vs Bhikari Charan Das & Others

This Civil Miscellaneous Petition has been filed challenging the order passed by the learned Civil Judge (Jr. Divn.), Jajpur in C.S. No.93 of

2013 involving an application under Section 10 of the Code of Civil Procedure being moved by the plaintiffs as find place at Annexure-7 of the

civil miscellaneous petition.

Short background involved in the case is that the petitioner as the plaintiff along with the other co-sharers filed title suit vide T.S. No.113 of

1997 on the file of learned Civil Judge (Jr. Divn.), Jajpur for declaring the gift deeds as void since the defendant no.2 Sudhansu Mohan Das is not

the adopted son of late Satyendra and further, the possession of the defendants 1 & 2 therein over the disputed property in favour of the plaintiff

and also for permanent injunction restraining the defendant nos.1 & 2 from claiming any interest over the suit land. Plaintiff-petitioner has lost his

attempt in the above suit vide R.F.A. No.8 of 2015, which is presently pending disposal. It is while the matter stood as above, the petitioner again

filed C.S. No.93 of 2013 before the learned Civil Judge (Jr. Divn.), Jajpur for permanently restraining the defendants from forcibly attempted to

take possession of the disputed property. Taking into consideration the pendency of the R.F.A. No.8 of 2015, it appears, the result therein has a

bearing on the result of the subsequent suit. The plaintiff-petitioner filed an application under Section 10 of the C.P.C. which matter was rejected

by the order of the trial court on 16.7.2014 on the premises that the present defendants are not the parties to the suit vide T.S. No.113 of 1997.

After gap of two years, the petitionerplaintiff filed another application under Section 10 of C.P.C. on the self same ground requesting therein for

stay of further proceeding of the later suit till disposal of the R.F.A. No.8 of 2015. On the premises that the opposite parties-the present

defendants for not being party to the title suit vide T.S. No.113 of 1997, the trial court held that the petition is not maintainable and consequently,

rejected the same. Thus, the present civil miscellaneous petition.

Shri Sushanta Kumar Dash, learned counsel for the petitioner taking this Court to the provisions contained in Section 10 of the C.P.C. and also

to the dispute involved in both the suits contended that for the interest of justice and to avoid any inconsistent view in the later suit, the later suit

should be stayed till final outcome in the R.F.A. No.8 of 2015. Consequently, learned counsel for the petitioner prayed for interference of this

Court in the impugned order, thereby setting aside the same and allowing the application under Section 10 of C.P.C.

Shri S.S. Das, learned counsel for the opposite partiesdefendants on the other hand, taking this Court to the nature of the suits involved herein,

particularly the disputes and the parties required to be considered involving both the suits and further for the rejection of the earlier application

under Section 10 of the C.P.C. at the instance of the plaintiff-petitioner itself by the very same court contended that there is right decision by the

trial court involving the issue and thus, there is no scope for this Court for interfering in such orders in exercise of power under Article 227 of the

Constitution of India.

Shri Das, learned counsel for the opposite parties also taking this Court to the decisions of different Court particularly the decision of Hon''ble

Apex Court in the case of National Institute of Mental Health & Neuro Sciences, v. C. Parameshwara, respondent as reported in AIR 2005

Supreme Court 242, in the case of Y.B. Patil and others, Appellants versus Y.L. Patil, Respondents as reported in AIR (1977) S.C. 392, in the

case of Manohar Lal Chopra, v. Rai Bahadur Rao Raja Seth Hiralal, Respondent as reported in AIR 1962 (S.C.) 527, in the case of Sudhansu

Mishrani and others, v. Subal Mishra, opposite party as reported in AIR 1984 (Orissa) 205, in the case of Sambhu Prasad versus Kailash

Chandra Das and others as reported in 76 (1993) C.L.T 517 and in the case of Suresh Kumar Singhi and others versus Kirit Kotecha and another

as reported in 2005 (I) OLR 408 submitted that for the support of the decisions referred to herein to the case of the defendants, there is otherwise

also no scope for interfering with the impugned order.

Considering the rival contentions of the parties, this Court finds, admittedly there are two suits involved and admittedly the present opposite

parties-defendants are no way involved in the first suit. Taking into consideration both the plaints involving the T.S. No.113 of 1997 and C.S.

No.93 of 2013, this Court finds, the Title Suit vide T.S. No.113 of 1997 involves the following parties :

Nabin Chandra Das aged 50 years.

Durgamadhab Das, aged 45 years,

Hariballav Das, aged 35 years,

Ram Ch. Das, aged 27 years.

S/o-late Nirod Kumar Das

Village-Rangas, P.O.-Chhatrapada,

P.S. Mangalpur, Dist.-Jajpur

Plaintiffs

-Vrs.-

Bholanath Das, aged 55 yrs., S/o- Balaram Das

Sudhansu Mohan Das, aged 28 yrs. S/o- Bolanath Das

Pranabananda Das, aged 45 years, (Dead)

Debi Prasad Das, aged 65 years. (Dead)

4.(a) Kumuda Das, aged 48 years, wife of late Debi Prasad Das,

4.(b) Debasis Das, aged 23 years, S/o- late Debi Prasad Das.

Both are now staying at Vill./P.O.-Binod Bihari Das.

Vill./P.O. Bara-Damodarpur, P.S./Dist.-Kendrapara.

Bibhu Prasad Das, aged 30 years.

S/o- Sarat Kumar Das,

Vill.-Rangas, P.O.-Chhatrapada, P.S. Mangalpur,

Dt.-Jajpur

Defendants

Similarly, the properties mentioned at page 17 involving T.S. No.113 of 1997 of the brief makes it clear involving the properties in the subsequent

suit. This suit has also the following prayer :

The plaintiffs therefore pray that:-

a) A decree be passed declaring deft no.2 as not the adopted son of late Satyendra.

b) A decree be passed declaring the gift deeds No.1173 and 2172 dt.16.4.76 and no.7747 dt.17.12.75 as void.

c) For a declaration that possession defendant nos.1 & 2 over plaintiffs'' properties if any is on behalf of the plaintiff only as gumasta.

d) For permanent injunction restraining defendants no.1 & 2 from claiming any interest on the basis of the above three gift deeds over

the case lands as described in schedule ''A'' and from creating any trouble in possession of plaintiffs;

e) For costs and for any other relief or reliefs which the plaintiff are entitled to;

Now coming to study the plaint averments involving the C.S. No.93 of 2013, this Court from Annexure-4 finds, this suit has the following

parties:

Durgamadhab Das, aged about 53 years, S/o-Late Nirod Kumar Das, Village-Rangas, P.O.-Chhatrapada, P.S. Mangalpur, Dist.-

Jajpur

Plaintiffs

-Vrs.-

Bhikari Charan Das, aged about 50 years, S/o.-Late Sankar Das,

Kamalini Das, aged about 45 years, Wife of Bhikari Das,

Maheswar Das, aged about 45 years, S/o- Gagan Bihari Das,

Bibhu Prasad Das, aged about years, S/o- Late Sarat Kumar Das.

All are of Village-Rangas, P.O. Chhatrapada, P.S. Mangalpur, Dist.Jajpur,

Defendants

This suit involves undoubtedly a part of the property involved in the earlier suit being purchased by the defendants involving C.S. No.93 of 2013

from the defendants involving the earlier suit. The prayer involved in this suit reads as hereunder:

That the plaintiff is therefore prayed that a decree be passed.

a) Permanently restraining the defendants to come over the suit land and to create type of disturbance in his smooth and peaceful

possession over the case land.

b) For cost.

c) For any other relief/reliefs for which the plaintiff is entitled to;

Reading of both the plaints and the particulars available in the plaint vide Annexures-1 & 4, there remains no doubt that there is a clear

distinction involving the parties therein and the lis. is also completely different. Now coming to the provisions contained in Section 10 of the C.P.C.

for determining as to whether under the circumstance, Section 10 of the C.P.C. has any application to the case or not? Reading of the provisions

makes it clear that the same restricts a court from proceeding with trial of any suit, in which the matter is issue is also directly and substantially in

issue in a previously instituted suit between the same parties, 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. This Court observes, the mandate of the provision is not only to see the issue is

directly and substantially involved in the previously instituted suit but it also required to see whether both the suits involve the same party or

between the parties under whom they or any of them litigating under the same title. Taking into consideration the plaint averments and both the suits

and the dispute involved herein involving both the suits, this Court though not finds, the issue involved in both the suits either directly or substantially

in issue but for the relief in the subsequent suit being dependant on the ultimate outcome in R.F.A. No.8 of 2015 particularly keeping in view the

defendants involving the subsequent suit are the purchaser of the property involved in the earlier suit being purchased from the defendants in the

earlier suit, so to say the defendants in the subsequent suit have stepped into the shoes of the defendants in the earlier suit. Therefore, there remains

no doubt that the result in the earlier suit now pending in first appeal is very much dependant on the ultimate outcome in the earlier suit.

Now coming to consider the citation cited at Bar by the learned counsel for the opposite parties in the case of Manohar Lal Chopra, v. Rai

Bahadur Rao Raja Seth Hiralal, Respondent as reported in AIR 1962 (S.C.) 527, this Court finds, the Hon''ble Apex Court in paragraph no.39

held as follows:

(39) The suit at Indore which had been instituted later, could be stayed in view of S.10 of the Code. The provisions of that section are clear,

definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified

circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being

instituted, recourse to the inherent powers under S. 151 is not justified. The provisions of S. 10 do not become inapplicable on a Court holding

that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. It does not appear correct to say

as has been said in Ram bahadur Thakur and Co. v. Debidayal (Sales) Ltd., ILR (1954) Bom. 334 :(AIR 1954 Bom 176), that the Legislature did

not contemplate the provisions of S.10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of

S. 35 A indicate that the Legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for

compensatory costs. The Legislature could have therefore provided for the nonapplication of the provisions of S.10 in those circumstances, but it

did not. Further, S. 22 of the Code provides for the transfer of a suit to another Court when a suit which could be instituted in any one of two or

more Courts is instituted in one of such Courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of

the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is

clear, therefore, that the Legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the

institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in

that other Courts.

Reading of the above decisions of the Hon''ble Apex Court this Court finds, consideration before the Hon''ble Apex Court was, as to when there

is a special provisions in the Code of Civil Procedure, recourse to inherent power of Section 151 of C.P.C, is justified or not? Answering the

same, the Hon''ble Apex Court held that for the clear provisions contained in Section 10 of the Code of Civil Procedure, recourse to Section 151

was not justified. Taking into consideration the decision in the case of Y.B. Patil and others, Appellants versus Y.L. Patil, Respondents as reported

in AIR (1977) S.C. 392, it appears, this decision dealt with Section 11 of C.P.C. and is only confined with the objection of the petitioner as to

when a Section 10 application has already been rejected, whether a subsequent application under Section 10 of C.P.C. was maintainable or not?

In paragraph nos.8 & 12 of the judgment in the case of National Institute of Mental Health & Neuro Sciences, v. C. Parameshwara,

respondent as reported in AIR 2005 Supreme Court 242, the Hon''ble Apex Court held as follows:

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 current 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 thereby, that the whole of subject matter in both the proceedings is identical.

In the case of Manohar Lal Chopra versus Rai Bahadur Rao Raja Seth Hiralal as reported in (AIR 1962 SC 527), it has been held that

inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by section 151, CPC, but that jurisdiction cannot be

exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be

regarded as exhaustive. In the present case, as stated above, section 10, CPC has not application and consequently, it was not open to the High

Court to byepass section 10, CPC by invoking section 151, CPC.

Considering the rival contentions of the parties and after taking into consideration the nature of the dispute involved in both the suits and finding

that the decision in the earlier suit has a relevancy on the decision in the later suit involved herein, even though, for the clear provisions contained in

Section 10 of the C.P.C. and as there is support of the contentions of the opposite parties by the decisions of the Hon''ble Apex Court referred to

hereinabove, this Court finds, Section 10 has no application to the case at hand. But for this Court''s finding that the decisions in the appeal has an

influencing factor on the subsequent suit, this Court applying the provisions contained in Section 151 of C.P.C. interferes with the impugned orders

and consequently, directs for stay of the subsequent suit vide C.S. No.93 of 2013 till final outcome in R.F.A. No.8 of 2015. While parting away

with the case at hand, this Court also directs the petitioner herein to approach the first appellate court dealing with R.F.A. No.8 of 2015 for

expeditious disposal of the same. As a result, this Court interfering with the impugned order vide Annexure-7 sets aside the same and applying two

decisions of this Court vide I.L.R. (1991) 2 Cut. 353 and 2007 (II) O.L.R. 459, applying the inherent powers, in exercise of power under Section

151 of C.P.C., this Court while interfering in the impugned order at Annexure-7 allows the application of the petitioner for staying the further

proceeding involving C.S. No.93 of 2013 till disposal of the R.F.A. No.8 of 2015.

The civil miscellaneous petition stands allowed. No cost.