Hasan Khan vs Zareena Bano and Others

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution, challenges the order of Court below dated 12.08.2013 whereby the application of the petitioner/defendant preferred u/s 10 C.P.C. is rejected by the Court below. Admitted facts between the parties are that the petitioner preferred the first suit Annexure P/5 and in the said case written statement is already filed by the respondent/plaintiff. Thereafter, respondent/plaintiff filed second suit Annexure P/3. Upon receiving notices of this suit, the present petitioner/defendant preferred an application u/s 10 C.P.C. for staying subsequent suit filed by the respondent. The said application is rejected by the impugned order dated 12.08.2013. Learned counsel for the petitioner submits that Court below has erred in rejecting the said application, whereas, learned counsel for the respondent supported the order.

I have heard learned counsel for the parties and perused the record.

Section 10 C.P.C. reads as under:--

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 litigation 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 bare perusal of provision shows that broadly there are four essential conditions for application of this section:--(1) that the matter in issue in the second suit is also directly and substantially in issue in the first suit; (2) the parties in the second suit are the same or parties under whom they or any of them are litigating under the same title; (3) that the court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit.

The important test to decide applicability of section 10 is whether final decision in the previous suit will operate as res judicata for the subsequent suit. In the first suit, the petitioner has prayed that it be declared that the petitioner is entitled to get the sale deed executed in his favour for the suit property. It is further prayed that it be declared that since possession of suit property is handed over to the petitioner, he is entitled to remain in possession being a title holder. It is further prayed that defendant therein be permanently injuncted from selling, transferring or giving suit property by way of will to anybody. It is also prayed that the defendant therein be restrained from making any effort to disturb the title and peaceful possession of the petitioner. In the second suit, filed by the plaintiff/respondent, it is prayed that it be declared that the present respondent is the sole title holder and is in possession of suit property. Restoration of possession is also prayed for in this suit.

It is not in dispute between the parties that parties and suit property in both the suits are common. If reliefs claimed in both the suits are examined in juxtaposition, it will be clear like noon day that the suit property is same, the question of title and possession is same and therefore, it is clear that if first suit is decided, it will certainly have an impact of res judicata on the second suit. Thus, the necessary ingredients for applying u/s 10 C.P.C. are satisfied.

In this view of the matter, the Court below has erred in holding that the decision of first suit will not have any impact on the second suit. The view taken by the Court below runs contrary to settled legal position. The ingredients of section 10 C.P.C. are satisfied. Thus, I deem it proper to allow the said application. Resultantly, the order dated 12.08.2013 is set aside to the extent application u/s 10 C.P.C. was rejected. The application u/s 10 C.P.C. is allowed. Petition is allowed. No Costs.