Kamala and Others vs Kulanthaivel and Another

T. Mathivanan, J.—This Memorandum of Civil Revision has been directed against the fair and decretal Order dated 8.9.2013 and made in

I.A. No. 496 of 2013 in O.S. No. 187 of 2011 on the file of the learned District Munsif, Rasipuram. It is apparent from the records that the

Respondents herein have filed a Suit in O.S. No. 187 of 2011 on the file of the learned District Munsif Court, Rasipuram as against the Revision

Petitioners seeking the relief of recovery of possession of the Suit property. The Suit has been contested by the Revision Petitioners by filing their

respective Written Statements. During the pendency of the Suit, the Revision Petitioners being the Defendant have taken out an Application in I.A.

No. 496 of 2013 u/s 10 of the Code of Civil Procedure, to stay all further proceedings of the Suit in O.S. No. 187 of 2011, till the final

adjudication of the Appeal proceedings in I.A. No. 41 of 2013 and I.A. No. 42 of 2013, which are said to have been pending on the file of the

learned Principal District Judge, Namakkal.

It is further revealed that the Respondents appear to have filed a Suit in O.S. No. 187 of 2011 on the strength of the Decree and Judgment

passed in O.S. No. 135 of 2008 on the file of the learned Subordinate Judge, Rasipuram. The Suit in O.S. No. 135 of 2008 was originally filed by

one Duraisamy who, is none other than the husband of the First Revision Petitioner, against the First Respondent herein. After a full fledged trial,

that Suit was dismissed on 5.11.2009. Thereafter the said Duraisamy being the husband of the First Revision Petitioner had passed away on

21.5.2010.

It is alleged that since the First Respondent herein had attempted to trespass and evict the Revision Petitioners by force, they came to know

about the disposal of the Suit in O.S. No. 135 of 2008 and therefore, they had filed an unnumbered Appeal before the learned Principal District

Judge, Namakkal as against the Decree and Judgment dated 5.11.2009 and made in O.S. No. 135 of 2008. Along with the said Appeal, the

Revision Petitioners had also filed two Applications i.e., I.A. Nos. 41 & 42 of 2013, i.e., one is for condonation of delay in filing the Appeal and

the other one is for staying the operation of the Judgment of the Trial Court in O.S. No. 135 of 2008.

Now the learned Counsel for the Revision Petitioners has argued that the subject matter which is in issue in the Suit i.e., O.S. No. 187 of 2011

as well as the subject matter which was in issue in O.S. No. 135 of 2008 are one and the same and since the finding given in O.S. No. 135 of

2008 would be having a bearing at the present Suit in respect of the First Respondent, she has urged that the present Suit in O.S. No. 187 of 2011

being a subsequent Suit has to be stayed till the final adjudication of the Petitions in I.A. No. 41 & 42 of 2013 in an unnumbered Appeal Suit/2003

pending on the file of the learned District judge, Namakkal.

On the other hand, Mr. P. Valliappan, learned Counsel for the Respondents has vehemently opposed the arguments advanced on behalf of the

Revision Petitioners, saying that the Suit in O.S. No. 135 of 2008 which was filed by the First Revision Petitioner''s husband Duraisamy was

dismissed rejecting the claim of declaration of title over the Suit property. He has argued further that when Duraisamy Mudaliar (husband of the

First Revision Petition and father of the Revision Petitioners 2 to 6) was alive, he was suffered with the decease of leprosy and since he had been

getting treatment in the hospital without any residential option, on his request and on a humanitarian ground, he was allowed to reside in the Suit

house for some time. Accordingly, the said Duraisamy Mudaliar and his wife who is the First Revision Petitioner and his children were residing in

the Suit property. But when they were asked to surrender and vacate the Suit property, the said Duraisamy had fabricated some forged documents

to make it appear as if he is having rights and therefore, he had proceeded to file the Suit in O.S. No. 135 of 2008 claiming the relief of declaration

and right over the Suit property.

That Suit was dismissed upholding the right of the First Respondent herein and on the strength of the Judgment and Decree in O.A. No. 135 of

2008, the present Suit in O.S. No. 187 of 2011 was filed as against the Revision Petitioner on 31.10.2011 with a prayer of recovery of

possession. He has also argued that summons were duly served on the Respondents on 9.1.2012 and they had also filed their respective Written

Statements on 12.7.2013 and thereafter the Suit was listed for trial. The Respondents had also filed their Proof Affidavit and the documentary

evidences ranging from Exs. A1 to A26 were marked and thereafter the Suit was listed for the cross-examination of PW 1 and these facts were

well known to the Revision Petitioners.

The learned Counsel Mr. P. Valliappan has also brought to the notice of this Court that the Appeal which was said to have been filed by the

Revision Petitioners as against the Decree and Judgment dated 5.11.2009 and made in O.S. No. 135 of 2008 was not at all numbered as there

was an abnormal delay and hence, the Revision Petitioners had filed two Applications in I.A. Nos. 41 & 42 of 2013 and those Applications are

also pending without any progress. In this connection he would submit that it could not be presumed that the delay would be condoned and the

Appeal would be numbered. He has also maintained that as on date no proceedings in respect of the Suit in O.S. No. 135 of 2008 are pending

and therefore, the Petition filed by the Petitioner u/s 10 of the CPC to stay the proceedings of the present Suit is not at all maintainable and

therefore, the learned Trial Judge has correctly dismissed that Application which does not require any interference of this Court.

Under this circumstance, it has become necessary on the part of this Court to take the assistance of the provisions of Section 10 of the Code of

Civil Procedure. Section 10 reads as under:

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.

The plain reading of Section 10 of the CPC makes it clear that where the subject matter of the Suit is one and the same and the parties are also

one and the same, under such circumstance if there are two Suits between the parties, it is the subsequent Suit which has to be stayed and not the

previous one.

On coming to the instant case on hand, of course the subject matter of the present Suit as well as the previous Suit in O.S. No. 135 of 2008

are one and the same. No doubt the Suit in O.S. No. 135 of 2008 was instituted by the husband of the First Revision Petitioner-Duraisamy but

now he has passed away after the dismissal of the Suit. Since the Revision Petitioner being the LRs of the deceased Duraisamy, are said to have

pursued the Appeal proceedings, unfortunately, there was an inordinate delay, and therefore, they have filed an Application in I.A. No. 41 of

2013, to condone the delay in filing the Appeal and therefore, it is apparent that the Appeal is kept pending unnumbered and as rightly argued by

the learned Counsel Mr. P. Valliappan, that it cannot be presumed or predicted that the Appeal would be allowed and equally it cannot also be

presumed that the Appeal proceedings are pending.

Secondly, the parties are also one and the same. Since as on date the Suit in O.S. No. 135 of 2008 is not pending and no Appeal is also

pending (mere pendency of unnumbered Appeal for want of condonation of delay cannot be taken into account) the present Suit in O.S. No. 187

of 2011 cannot be stayed.

The languages of the provisions of Section 10 of the CPC have been intervened in a careful manner by the legislators. In order to pass an

Order u/s 10 of the Code of Civil Procedure, the following ingredients are very much essential:

The matter in issue in the Suit is directly and substantially in issue in a previously instituted Suit between the same parties;

The previously instituted Suit is pending--

(a) in the same Court in which the subsequent Suit is brought; or

(b) in any other Court in India (whether superior, inferior or coordinate); or

(c) in any Court beyond the limits of India established or continued by the Central Government; or

(d) before the Supreme Court.

On coming to the instant case on hand, it is palpable that previously instituted Suit in O.S. No. 135 of 2008 is not pending anywhere. As stated

hereinbefore the Revision Petitioner have merely filed an Appeal with a delay and still it is pending unnumbered on the file of the learned Principal

District Judge, Namakkal and therefore, it cannot be construed or presumed that the previously instituted Suit is pending.

In support of this position Mr. P. Valliappan learned Counsel appearing for the Respondents/Plaintiffs has placed reliance upon the following

two decisions:

Devanayagi Ammal and Others Vs. Manicka Konar and Ramu Konar, .

L. Nem Kumar Agarwal Vs. Nem Kumar and Another, .

In L. Nem Kumar Agarwal''s case cited second supra it is observed that:

Section 10 requires that a Suit must be stayed if the matter directly and substantially in issue in it is also directly and substantially in issue in a

previous Suit that is pending. The criterion for deciding whether the subsequent Suit be stayed or not is whether there is identity of the matters,

directly and substantially in issue in the two Suits; if there is, the subsequent Suit must be stayed and if there is not, it will not be stayed. For the

applicability of the Principle of res judicata also it has to be decided whether the matter in the subsequent Suit was directly and substantially in issue

in the earlier Suit in which the decision was given. To say that Section 10 will apply if the decision in the earlier Suit would operate as res judicata

in the subsequent Suit, does not at all advance the solution of the problem because it will still have to be decided whether the matter in issue in the

subsequent Suit was directly and substantially in issue in the earlier Suit. The Court in deciding on the applicability of Section 10 should therefore,

confine itself to the question whether there is identity of the matters directly and substantially in issue in the two Suits.

In the light of the above decision, this Court would like to point out that it is the pendency of the previously instituted Suit that constitute a bar

on the trial of the subsequent Suit. Therefore, since the previously instituted Suit is not pending and the pendency of the Application to condone the

delay in filing the Appeal cannot be regarded as the pendency of the Suit, the present Suit in O.S. No. 187 of 2011 cannot be stayed and

therefore, the learned Trial Judge has correctly dismissed the Application in I.A. No. 496 of 2013 which does not require any disturbance as this

Court has also given due concurrence to the Order passed by the learned Trial Judge, in the Application in I.A. No. 496 of 2013 and therefore,

the present Civil Revision Petition is liable to be dismissed. Accordingly the Civil Revision Petition is dismissed. The fair and decretal Order dated

5.9.2013 and made in I.A. No. 496 of 2013 in O.S. No. 187 of 2011 on the file of the learned District Munsif, Rasipuram, are confirmed. There

shall be no order as to cost. Consequently, connected Miscellaneous Petition is closed.