Mahangu Prasad Sah and another vs Prayag Sah and others

Baharul Islam, J.—Prayag Sah Teli, opposite party No. 1 to the present application, filed O. S. No. 13 of 1969 in the Court of Munsiff No. 1 at Imphal, Manipur. Mahangu Prasad Sah and Bishwanath Prasad, the present petitioners, were the sole defendants in the suit. The suit land was a small triangular area. The plaintiff claimed for a declaration that the suit land was covered by patta No. 100/82-I. E. T. belonging to him. The land on the adjoining north of patta No. 100/82 is covered by Patta No. 100/47 belonging to the defendants of the suit. The Munsiff after trial, decreed the plaintiffs suit. The present petitioners have filed O. S. No. 41 of 1971 in the Court of Munsiff No. 1. The suit land is described in Schedule B (1) to the plaint and is shown in the attached sketch map. It is a small quadrangular area, a Part of which appears to He in patta No. 100/47 and the other Dart in patta No. 100/82. The plaintiffs claimed for a decree of declaration that the suit land is the land covered by patta No. 100/47 I. E. T. belonging to them. In the suit, the plaintiffs made Prayag Sah Teli, aforesaid, defendant No. 1, and his son. Ramnarayan Teli, defendant No. 2 and joined two others as defendants Nos. 3 and 4. Defendant Nos. 1 and 2 of Suit No. 41 of 1972 filed an application before the Munsiff for stay of the suit u/s 10 of the CPC and the learned Munsiff after hearing the parties, by his impugned order dated 21-11-1972, has staved the suit. The present application is directed against this order 2.

Section 10 of the Code provides that

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 under whom they or any of them claim litigating under the same title where such suit is pending in the same x x x Court having jurisdiction to grant the relief claimed x x x .

Shri T. N. Bhattacharjee, learned counsel appearing for the petitioners, submits that the suit land of the subsequent suit is not identical with the suit land in the previous suit. His second submission is that the parties in the two suits are not same.

I have examined the plaints of the two suits including the schedules of the suit lands and the sketch maps attached to the plaints. The suit land in the subsequent suit is shown to have been covered by a rectangular area, whereas the suit land in the previous suit is shown as a triangular area. But the real dispute in both the suits is whether the disputed area is covered by patta No. 100/82 or by Patta No. 100/47. The learned Munsiff has found that the suit lands of the two suits are more or less identical. I, therefore, agree with the learned Munsiff and hold that the matter in issue in the subsequent suit has been directly and substantially in issue in the previous suit.

A perusal of the plaint of Suit No. 41 of 1971 does not show any reliefs to be claimed by the plaintiffs against defendants Nos. 3 and 4. They may be pro forma defendants. Defendant No. 2, as stated above, is the son of defendant No. 1. From the plaint it appears that he along with his father defendant No. 1 has constructed certain structures on the suit land and the plaintiffs seek recovery of possession of the suit land after removal of the structures raised by defendants Nos. 1 and 2.

"Same parties" within the meaning of Section 10, Civil P. C. contemplates same effective parties who seek reliefs or against whom reliefs are sought. If some persons are added as nominal or pro forma parties in the subsequent suit, that fact will not detract from the fact that the parties are essentially the same in both the suits within the meaning of Section 10 of the Code.

The Calcutta High Court in Shorab Merwanji Modi and Another Vs. Mansata Film Distributors and Another, have held:

Section 10 speaks of ''same parties'', but the ''same parties'' mean ''the parties as between whom the matter substantially in issue has arisen and has to be decided''. Complete identity of either the subject-matter or the parties is not required. Hence, the fact that there is an additional party in the suit filed subsequently does not by itself make Sec. 10 inapplicable.

The Nagpur High Court is of the same view. In AIR 1948 297 (Nagpur) . it has been held;

It is doubtful if for the application of Section 10 there should be a complete identity of parties or a complete identity of the subject-matter. It is enough that there should be substantial identity of parties in the two suits.

Section 10 of the Code does not bar a suit; it only bars the trial of a suit in which the matter in the subsequent suit is directly and substantially in issue in the previous suit and in which the parties in both the suits are the same and when the Court in which the first suit was filed was competent to grant relief sought in the subsequent suit. The purpose of Section 10 is to avoid conflict of judicial decisions by preventing Courts of concurrent jurisdiction from adjudicating upon two or more parallel suits in which the matter in issue is substantially the same. In the instant case all the conditions of Section 10. Civil P. C. have been fulfilled and as such the trial of the suit is barred

The last submission that Shri Bhattacharjee faintly urges is that there is no previous suit. He submits that the previous suit has been disposed of. It is however admitted that an appeal from the decree in the previous suit is pending. The law is well settled that an appeal is a continuation of the suit as such although the prior suit as such has ended, but it is in the stage of an appeal.

In the result, this application has no merit and is rejected. The rule is discharged. I however make no order as to costs.

Application rejected.