Govindankutty Mannadiar and Others vs Lakshmikutty Amma

S. K. Kader, J.—The respondents in I. A. No. 1755 of 1980 in O.S. No- 242 of 1977 are the revision petitioners. O. S No. 242 of 1977 was instituted by the respondent herein for recovery of possession of items of properties described in the plaint schedule on the strength of plaintiff''s title. The defendants in the suit who are the revision petitioners herein filed a written statement contending inter alia that they are tenants, in respect of suit properties entitled to fixity of tenure Under the Kerala Land Reforms Act (Act 1 of 1964), herein-after called ''the Act''. On the basis of the pleading, issue were framed in the trial court and one of the issues was whether the defendants are tenants entitled to fixity of tenure under the Act. The question raised under this issue whether defendants 2 and 3 are tenants entitled to fixity of tenure, was referred u/s 125 (3) of the Act, to the Land Tribunal having jurisdiction over the area for decision of the question- Accordingly, the reference was taken on file by the Land Tribunal in O. A. No. 9 of 1978. But prior to the institution of O. S. No. 242 of 1977, the Land Tribunal had initiated two suo motu proceedings S. M. 1317 of 1977 and S. M. of 1319 of 1977 in respect of the same properties involved in the suit. In both the suo motu proceedings mentioned above, defendants 2 and 3, the revision petitioners herein, contended that they are cultivating tenants entitled to fixity of tenure. The Land Tribunal jointly heard (O. A. 9 of 1978, S. M- 1317 of 1977 and S. M. 1319 of 1977) the above three proceedings and disposed them of by a common order holding that defendants 2 and 3 are cultivating tenants entitled to fixity of tenure. The Land Tribunal after deciding the question referred to it, returned the records back with its decision to the court of Additional Sub-Judge, Palghat where O. S. 242 of 1977 was pending trial. Thereafter, the landlord who is said to be plaintiff in O. S. 242 of 1977 challenged the findings of the Land Tribunal in the two suo motu proceedings by preferring appeals A.A.T. 296 of 1980 and A.A.T. 297 of 1980 before the Appellate Authority and these appeals are now said to be pending. The plaintiff, the respondent herein, then filed I. A. 1755 of 1980 u/s 10 of the C.P.C. for staying the suit O. S. 242 of 1977 on the ground that the two previously instituted proceedings are pending in A. A. T. Nos. 296 and 297 of 1980 before the Land Reforms Appellate Authority and that there is every likelihood of conflict of decisions if those appeals are allowed and the finding in O. A. 9 of 1978 accepted and the suit disposed of accordingly.

The court below found that the decision of the Appellate Authority will operate as res judicata in the suit and therefore when previously instituted proceedings before the Land Tribunal, where tenancy question was agitated, were pending, the subsequent suit instituted in court cannot be proceeded with and stayed O. S. 242 of 1977 u/s 10 of the C.P.C. till disposal of the two appeals pending before the Land Reforms Authority.

Attacking this order, Shri N. Viswanatha Iyer, learned advocate for the petitioner strongly contended that Section 10 C. P. C. does not apply to the facts of this case, that the essential requirements therein are not satisfied in the case, that Section 10 applies only to courts of concurrent jurisdiction, that even otherwise Section 10 of the C. P. C. cannot apply to this case because of the overriding effect of Section 125 of the Act, the provisions of which are mandatory, and that in a case where Section 125 of the Act is applicable, Section 10 C. P. C has no application. It was also argued that when once a finding from the Land Tribunal is received, it is the duty of the court to accept the same and proceed as contemplated in the provisions in Section 125 of the Act.

Section 10 of the C. P. C. reads:

Stay of Suit. 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.

Explanation-The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.

The provision in Section 10 are, no doubt, mandatory in nature. By virtue of the provisions in sub-section (1) of Section 125 of the Act, the jurisdiction of a civil court has been expressly barred to settle or decide or deal with any question or to determine any matter which is by or under the Act required to be settled or decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government. Of course, this provision is subject to the proviso to that section. No doubt, sub-section (5) of Section 125 states that the Civil Court shall then proceed to decide the suit or other proceedings accepting the decision of the Land Tribunal on the question referred to it. It was relying on Section 127 of the Act that the counsel for the revision petitioners contended that the provision in Section 125 of the Act applies and therefore, Section 10 has no application. Section 127 of the Act reads;

Act to override other laws, etc.-The provisions of this Act shall have effect notwithstanding anything in any other law'' or any custom or usage or in any contract, express or implied, inconsistent with the provisions of this Act..

The provisions of this Act shall have effect notwithstanding anything in any other law or in any custom or usage or any contract, express or implied, inconsistent with the provisions of the Act. What is barred u/s 10 is proceeding with the trail of a suit; while what is barred u/s 11 of C. PC. is either the trial of a suit or any of an issue in the instituted suit. As an issue had been raised on the question of tenancy and the Civil Court has no jurisdiction to decide that question, it was referred to the Land Tribunal. The question of trial of that issue arises only when the civil court accepts the finding of the Tribunal or take steps in that direction. In the present suit, the application u/s 10 was filed before the trial court before it commenced the trial of the issue or accepted the finding of the Land Tribunal. Reading of Section 125 of the Act and Section 10 of the C. P C., I do not find anything inconsistent in Section 10 with the provisions of the Act. I am therefore unable to accept the argument of the counsel that the provisions in Section 125 overrides Section 10 and Section 10 has no application to a case of this nature.

The next question for consideration is whether all the requirements of Section 10 have been satisfied in this case. The following are the essential requirements for application of. Section 10 of the C. P. C. (1) The matter in issue in the subsequent and in the previously instituted suit must be between the same parties or their representatives; and (2) such parties must be litigating in both the suits under the same title. The previously instituted suit must be pending in the same court or in 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. The Court in which the previously instituted suit is pending, must be the competent court to grant not only the relief claimed in that suit but also the relief claimed in the subsequent suit. To put it differently the previous and the subsequent suits must be pending in Court of concurrent jurisdiction. It was held in Brijlal and Company v. M. P. E. Board (AIR 1975 Calcutta 69) that that the entire controversy between the parties could not be finally determined in the suit instituted first; since the field of controversy and claim in the latter suit was far more comprehensive the petition to stay the latter suit could not be granted although there were some common issues in the two suits".

This decision of the Calcutta High Court has been followed by the Delhi High Court in Maltexmalsters Private Ltd. Vs. Allied Engineers, . A similar view was taken by the Andhra Pradesh High Court in Bhoganadham Seshaian Vs. Budhi Veerabhadrayya (Died) and Others, where it was held that in order to attract the provisions in Section 10 C.P.C. both the courts in which the suits are pending, must be of concurrent jurisdiction and that therefore the court in which the previously instituted suit is pending must have jurisdiction to grant the relief claimed in the subsequent suit. In Ms. Sankhala Industries v. Ms. Hiralal Pukhraj (AIR 1973 Rajasthan 306) it was held that subsequent suit cannot be stayed when court in which previous suit is pending is incompetent to grant relief claimed in subsequent suit. According to the Karnataka High Court it was held in Channabasappa v. Kishan Chand (AIR 1972 Mysore 112). The three essential conditions that are necessary for grant of stay order u/s 10 C. P. C. are: (1) that the matter in issue in the second suit is directly and substantially in issue in the previously instituted suit; (2) that the parties in the two suits are the same and (3) that the court in which the first suit is instituted, is a court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit. I am in respectful agreement with the decisions referred to above. Now coming to the facts of the instant case, it satisfied two essential conditions only. The third condition which is equally important is whether the Court in which the first suit instituted is competent to grant the relief claimed in the subsequently instituted suit. Admittedly the Land Tribunal before which suo motu proceedings initiated was pending is not competent to grant the relief claimed in the subsequently instituted suit namely O. S- 242 of 1977. I therefore hold that, in the light of the above decisions, Section 10 of C. P. C. has no application to the facts of this case as the third essential requirement referred to above has not been satisfied.

In the result, this revision is allowed; and the order under attack is set aside. No costs, in the circumstances.