Hoshiar Singh and Others vs Mahender and Others

Iqbal Singh, J.—Hoshiar Singh and others, the petitioners herein filed a suit bearing No. 104 of 1998, for permanent injunction against the respondents, restraining the latters from dispossessing them from the Gher in dispute shown in red colour and marked by letters A, B, C, D in the site plan attached annexed with the plaint, forcibly and illegality, except in due course of law. They also further prayed for a decree for recovery of a sum of Rs. 10,000/- along with interest at the rate of 18% per annum from the date of the suit till the date of realisation.

During the pendency of the suit, the defendants moved an application u/s 10 of the CPC for staying proceedings in the suit. It was stated that the dispute involved in the aforesaid suit was directly and substantially in issue in another suit bearing No. 1296 of 1996 between the same parties, pending in the Court of Mrs. Poonam Suneja, Civil Judge (Junior Division), Sonepat. The application was resisted. It was stated that in the previous suit, the dispute related to a street shown in yellow colour whereas in the present suit, the dispute relates to a gher. It was also stated that the street was being used by the plaintiffs and other residents of the village whereas the gher involved in the present suit was in exclusive possession of the plaintiffs which they are using for their domestic purposes.

Trial Court on a consideration of the matter and after observing that there would be no end to litigation if by twisting the facts, the parties are allowed to institute new suits, the relief about which could be claimed in the previously instituted suit, by way of amendment in the plaint, allowed the application and stayed the proceedings in Civil Suit No. 104 of 1998, by its order dated 11. 6. 1998. Hence this revision at the instance of the plaintiffs.

I have heard learned counsel for the parties. Learned counsel for the petitioners submitted that the trial Court erred in accepting the application of the defendants and adjourning the suit sine die, as the relief claimed in both the suits are totally different and relate to a different property. Learned counsel also submitted that the trial Court could not accept the application unless the defendants had filed written statement and it was only then that after perusing the stand of the defendants in the written statement, the trial Court could proceed to dispose of the application. In support of his contention, counsel relied upon a decision in Rup Chand Dharam Chand, Kanpur Vs. Basant Lal Banarsi Lal, Dhuri, .

The contention of the learned counsel for the petitioners that the application u/s 10 of the Code moved by the defendants could not be entertained unless they had filed written statement, has no merit. In the reported case noticed above, it was held as under:-

"Though normally the Court would not allow a party to move an application u/s 10, Civil P.C. unless he has filed his written statement, the Court would entertain the application of the defendant for stay in a case where he has annexed a copy of the plaint in the previously instituted suit and it can be found out from the copy of that plaint as to what the dispute between the parties is. Even if the Court thought that a perusal of the two plaints was not enough to find out whether the subject-matter of controversy between the parties in the two suits was identical or not, it could keep the application pending and could take it up for decision after getting the written statement filed but it should not dismiss the application at that stage."

It is clear from the above observations that normally the Court would not allow a party to move an application u/s 10 of the Code unless it had filed written statement, but the Court can certainly entertain such application where the party has annexed a copy of the plaint of the previous suit from where it can be found out as to what the dispute between the parties is. The above observations do not indicate that the application for stay of the suit cannot at all be entertained unless the party had filed written statement. If from the perusal of the plaints of the two suits, the controversy raised therein is crystal clear, at least to the extent it is required to be seen for the purpose of disposing of the application for stay of the suit, the Court can certainly entertain and dispose of that application even without first requiring the party to file written statement. In other words, the requirement of filing written statement for the purpose of deciding the application u/s 10 of the Code is secondary, which of course is required to be resorted to when the Court thinks that a perusal of the two plaints is not enough to find out whether the subject matter of controversy between the parties in the two suits is identical or not.

In the instant case also, the Trial Court has accepted the application for stay of the suit, after perusing the plaints of the two suits and after being satisfied that the subject matter of the controversy raised in the two suits is almost identical and has accepted the application for giving valid reasons.

Even during the course of hearing in this Court also, a copy of plaint of previously instituted suit No. 1296 of 1996 was shown to me. A perusal of the said plaint goes to show that the plaintiffs had earlier filed a suit for permanent injunction restraining the defendant-respondents from encroaching upon the gali marked by letters LKMH, shown by yellow colour in the site plan annexed with the plaint. The plaintiffs have not mentioned the Khasra Nos. of the house or of the disputed site in the previous suit. In that suit, the application for temporary injunction was dismissed on 17.3.1998 and thereafter the present suit was filed on 18.4.1998. In the present suit also, the plaintiffs have failed to mention the Khasra Nos., of the site or the so-called Gher alleged to be in their possession. Both the suits are for permanent injunction and the same controversy as involved in the previous suit appears to have been raised in the present suit though in somewhat different manner and indirectly seeking same relief:

In view of the above, I do not find any illegality or material irregularity on the impugned order. The revision petition is consequently dismissed.