Gaushala (Regd.), Mahendergarh vs Sursati Devi

V.S. Aggarwal, J.

The present revision petition filed by Shri Gaushala (Regd.) Mahendergarh is directed against the order passed by the learned Civil Judge (Junior Division) Mahendergarh dated 21.7.1997. By virtue of the impugned order, the learned trial Court had stayed the suit filed by the petitioner keeping in view the provisions of Section 10 of the Civil Procedure Code.

Some of the relevant facts alleged are that land measuring 127 kanals 19 marlas belonged to one Gujar Mal s/o Sh. Bakhtawar Mal. In the year 1965 the owner of the said land decided to create a Trust for Dharmarth. The income of the land was agreed to be spent on Dharmarth activities like installing waterhut for the passengers and for making places for drinking water for animals. One Mangal Ram was kept as employee for serving water to the passengers at the waterhut. Subsequently, Mangal Ram became dishonest. Because owners of the land were residing at Kanpur in their absence, he got entered Khasra Girdawari of 38 kanals 1 marla of land as a tenant "Gair Marusi". Soon thereafter when the aforesaid Khasra Girdawari came to the notice of the authority, the same was corrected in the year 1975. In the year 1997, the owners of the land felt that the Trust created by them was not working properly, therefore, they decided to gift the entire land to Shri Gaushala (Regd.) Mahendergarh/petitioner. The petitioner is engaged in serving cows and other animals as per Sanatan Dharam. A registered gift deed was executed and mutation was entered in favour of Shri Gaushala (Regd.) Mahendergarh.

On 5.4.1997 respondents No. 1 to 6 who were legal representatives of Mangal Ram filed a civil suit No. 151 to the effect that they are owners in possession of 38 kanals 1 marla of land and their father was Gair Marusi tenant. They also challenged the gift deed made by the owners in favour of the petitioner. On 17.5.1997 the petitioner too filed a suit for permanent injunction to the effect that defendants in that suit (it includes respondents No. 1 to 6) be restrained from interfering into 127 kanals 19 marlas of land which is owned and possessed by the petitioner. Besides Mangal Ram, one Ram Singh was also made a party.

The legal representatives of Mangal Ram who are respondents No. 1 to 6 filed an application under Section 10 of the Code of Civil Procedure on the ground that they had earlier filed a civil suit which is pending in the Court of Civil Judge (Junior Division) Mahendergarh and, therefore, the subsequent suit may be stayed. The learned trial Court allowed the application and vide the impugned order held that questions about validity of the gift deed and possession are common in both the suits and consequently the subsequently instituted suit filed by the petitioner was stayed. Aggrieved by the same, the present revision petition has been filed.

It was not being disputed that some of the issues pertaining to possession and about the validity of the gift are identical in both the suits, but in the subsequently instituted suit there is an additional party and the land involved is not 38 kanals 1 marla but 127 kanals and 19 marlas. It is in this backdrop that the question as to whether the subsequently instituted suit was to be stayed or not is to be determined.

In this regard the law is well settled that as a broad workable rule if a decision in the earlier instituted suit operate as res judicata in the subsequently instituted suit, then the subsequently instituted suit shall be stayed in terms of Section 10 of the Code of Civil Procedure. Section 10 of the Code of Civil Procedure reads as under :

"10. 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 India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court."

A perusal of Section 10 of the Code of Civil Procedure which has been reproduced above clearly shows that : (1) the matter in issue in the second suit must be directly and substantially in issue in the prior suit; (2) prior suit must be pending in the same Court or in any other Court in India having jurisdiction to grant the relief; (3) the previously instituted suit is pending in any Court and such Court is competent to grant the relief claimed.

This question has been considered by the Calcutta High Court in the case of Brijlal & Co. v. Madhya Pradesh Electricity Board, AIR 1975 Calcutta 69. In the cited case, A filed a suit against B claiming refund of price in respect of defective supply of goods under contract. Subsequently B filed suit claiming certain amounts under the contract and also for damages for breach of contract by A. The claim in the later suit far exceeded the claim in the former suit. A filed an application seeking stay of the subsequently instituted suit under Section 10 of the Code of Civil Procedure. It was held that the entire controversy between the parties could not be finally determined in the suit instituted in the first instance. The later suit was more comprehensive in nature and, therefore, it was not necessary to stay the same.

Delhi High Court also considered the said controversy in the case of C.L. Tandon v. Prem Pal Singh Rawat and others, AIR 1978 Delhi 221. It was held that it is not the requirement of law that the matter involved in both the suits should be totally identical and they should be substantially the same. In the cited case, it was found that one of the issue framed was common in both the suits and that would not attract Section 10 of the Code of Civil Procedure. The Court went on the hold that Section 10 of the Code of Civil Procedure does not require complete identity of the parties.

Gujarat High Court in the case of M/s Sohal Engineering Works, Bhandup, Bombay v. Rustam Jehangir Vakil Mills Co. Ltd., Ahmedabad, AIR 1981 Gujarat 110, was also concerned with the question as to what is meant "directly and subsequently in issue". The Court held as under :

"The policy of the law is that if the matter in issue in the two parallel suits is identical in the interest of judicial commity, the Court in which the subsequently instituted suit is pending shall stay the proceedings and allow the previously instituted suit to proceed. The key words in the section are : "the matter in issue is directly and substantially in issue" in the previously instituted suit. The words "directly and substantially in issue" are used in contradiction 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 subjectmatter 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."

Madras High Court in the case of R. Srinivasan v. Southern Petrochemical Industries Corporation Ltd., AIR 1992 Madras 363 while considering the scope of Section 10 of the Code of Civil Procedure and the words "matter directly and substantially in issue" held that this mean if there is an identity of the matter in issue in both the suits meaning thereby that whole of the subject matter in both the proceedings is identical. In paragraph 9 of the judgment, the Court observed as under :

"The learned counsel for the respondent has rightly argued that the key words in Section 10 are : "the matter in issue is directly and substantially in issue" in the previously instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". That means that Section 10 would apply only if there is identity of the matter in issue in both the suits meaning thereby that the whole of the subjectmatter in both the proceedings is identical and not merely one of the many issues which arise for determination in the two suits."

It is obvious from what has been recorded above that in the two suits that may be pending, the matter involved must be substantially the same. It may not be wholly identical. Revering back to the facts of the present case, one can conveniently refer to the basic facts and relist them. The land involved in the subsequently instituted suit is more and further the parties are also little different in the subsequently instituted suit. There are more parties in the subsequent suit. That being so, the decision in the earlier suit will not wholly operate as res judicata in the subsequent suit. It is true that some of the questions could be common but not substantially the same. In that view of the matter, the order of the learned trial Court indeed cannot be sustained.

Learned counsel for the petitioner suggested that both the suits can well be consolidated. It is indeed for the trial Court to consider the same and he may consolidate both the suits or try them together but no opinion is being expressed because that was not the question in controversy before this Court.

For these reasons and subject to what is recorded above, the revision petition is allowed and the impugned order dated 21.7.1997 is set aside. The parties are left to bear their own costs.