Meghraj And Anr. vs Sunderbai And Ors

The petitioner before this Court has filed present petition being aggrieved by order dated 08/12/2016 passed in Civil Suit No.15A/2016 by learned Civil

Judge, Class-II, Sarangpur, Distt. Rajgarh.

02- The facts of the case reveal that respondents before this Court have filed a civil suit seeking declaration of title and permanent injunction in

respect of land ad-measuring 3.716 hectare and number of the civil suit is 17-A/2015. Thereafter, the present petitioners, who are defendant in the

aforesaid civil suit, have filed a civil suit for declaration of a sale deed as null and void.

03- It is pertinent to note that during the pendency of the earlier civil suit the land in question was sold by the present respondents and in those

circumstances a second civil suit was filed for declaration of sale deed as null and void. A prayer was made for declaration and for grant of

permanent injunction.

04- The trial Court has passed an order on an application preferred under Section 10 of the Code of Civil Procedure, 1908 staying the subsequent suit.

This Court has carefully gone through the order passed by the trial Court. Section 10 of the Code of Civil Procedure, 1908 reads as under:-

“10. 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.â€​

05- Undisputedly, the civil suit filed earlier in point of time i.e. 17A/2015 was in respect of the same land and the plaintiffs therein was claiming

declaration of title and permanent injunction. The land was sold during the pendency of the proceeding and thereafter, a second civil suit has been filed

by the present petitioners who are defendants in Civil Suit No17-A/2015. In order to avoid multiplicity of the judicial proceedings, the trial Court was

certainly justified in staying the second civil suit in light of Section 10 of the Code of Civil Procedure, 1908.

06- Learned counsel has placed reliance upon a judgment delivered by the apex Court in the case of Aspi Jal and Another Vs. Khushroo Rustom

Dadyburjor reported in (2013) 4 SCC 333 and has argued that the apex Court has taken into account the scope and object of Section 10 and 11 of the

Code of Civil Procedure, 1908. The apex Court in Paragraphs No.9 to 12 of the aforesaid judgment has held as under:-

“9. Section 10 of the Code which is relevant for the purpose reads as follows:

“10. 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.â€​

From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not

proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the

same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is

competent to grant the relief claimed. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit†makes

the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the

conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the

Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action,

same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two

courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding.

The view which we have taken finds support from adecision of this Court in National Institute of Mental Health & Neuro Sciences vrs.

C.Parameshwara, (2005) 2 SCC 256 in which it has been held as follows:

“8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the

same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of

conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is

referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section

10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter

in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-

judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in

Section 10 are “the matter in issue is directly and substantially in issue†in the previous instituted suit. The words “directly and substantially in

issue†are used in contradistinction to the words “incidentally or collaterally in issueâ€. Therefore, Section 10 would apply only if there is identity

of the matter in issue in both the suits, meaning thereby, that the whole of the subjectmatter in both the proceedings is identical.â€​

In the present case, the parties in all the three suits areone and the same and the court in which the first two suits have been instituted is

competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether “the matter in issue is also

directly and substantially in issue in previously instituted suitsâ€. The key words in Section 10 are “the matter in issue is directly and substantially in

issue in the previously instituted suitâ€. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the

previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the

same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to

be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the

subsequent suit.

As observed earlier, for application of Section 10 of theCode, the matter in issue in both the suits have to be directly and substantially in issue in

the previous suit but the question is what “the matter in issue†exactly means? As in the present case, many of the matters in issue are common,

including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code,

the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply

only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As

stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been

sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the

same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they

establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction.

Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.â€​

07- This Court has carefully gone through the aforesaid judgment. In the present case, in both the civil suit the subject matter of property is same. The

adjudication of first civil suit will certainly effect the adjudication of second civil suit and in those circumstances the trial Court was justified in passing

the aforesaid order.

08- This Court does not find any reason to interfere with the order passed by the trial Court. It does not suffer from any jurisdictional error nor suffer

from perversity and it has certainly been passed in consonance with Section 10 of the Code of Civil Procedure, 1908.

09- The apex court in the case of Shalini Shyam Shetty Vs. Rajendra Shankar Patil reported in 2010 (8) SCC 329 in paragraph 49 held as under:-

49.  On an analysis of the aforesaid decisions of this Court, the following principles on the exercise of High Court's jurisdiction under Article 227

of the Constitution may be formulated:

(a) A petition under Article 226 of the Constitution is different from a petition under Article 227. The mode of exercise of power by High Court under

these two Articles is also different.

(b) In any event, a petition under Article 227 cannot be called a writ petition. The history of the conferment of writ jurisdiction on High Courts is

substantially different from the history of conferment of the power of Superintendence on the High Courts under Article 227 and have been discussed

above.

(c) High Courts cannot, on the drop of a hat, in exercise of its power of superintendence under Article 227 of the Constitution, interfere with the

orders of tribunals or Courts inferior to it. Nor can it, in exercise of this power, act as a Court of appeal over the orders of Court or tribunal

subordinate to it. In cases where an alternative statutory mode of redressal has been provided, that would also operate as a restrain on the exercise of

this power by the High Court.

(d) The parameters of interference by High Courts in exercise ofits power of superintendence have been repeatedly laid down by this Court. In this

regard the High Court must be guided by the principles laid down by the Constitution Bench of this Court in Waryam Singh (supra) and the principles

in Waryam Singh (supra) have been repeatedly followed by subsequent Constitution Benches and various other decisions of this Court.

(e) According to the ratio in Waryam Singh (supra), followed insubsequent cases, the High Court in exercise of its jurisdiction of superintendence can

interfere in order only to keep the tribunals and Courts subordinate to it, 'within the bounds of their authority'.

(f) In order to ensure that law is followed by such tribunals and Courts by exercising jurisdiction which is vested in them and by not declining to

exercise the jurisdiction which is vested in them. (g) Apart from the situations pointed in (e) and (f), High Court can interfere in exercise of its power

of superintendence when there has been a patent perversity in the orders of tribunals and Courts subordinate to it or where there has been a gross and

manifest failure of justice or the basic principles of natural justice have been flouted.

(h) In exercise of its power of superintendence High Court cannot interfere to correct mere errors of law or fact or just because another view than

the one taken by the tribunals or Courts subordinate to it, is a possible view. In other words the jurisdiction has to be very sparingly exercised.

(i) High Court's power of superintendence under Article 227 cannotbe curtailed by any statute. It has been declared a part of the basic structure of

the Constitution by the Constitution Bench of this Court in the case of L. Chandra Kumar vs. Union of India & others, reported in (1997) 3 SCC 261

and therefore abridgement by a Constitutional amendment is also very doubtful.

(j) It may be true that a statutory amendment of a rather cognate provision, like Section 115 of the Civil Procedure Code by the Civil Procedure Code

(Amendment) Act, 1999 does not and cannot cut down the ambit of High Court's power under Article 227. At the same time, it must be remembered

that such statutory amendment does not correspondingly expand the High Court's jurisdiction of superintendence under Article 227.

(k) The power is discretionary and has to be exercised onequitable principle. In an appropriate case, the power can be exercised suo motu.

(l) On a proper appreciation of the wide and unfettered power ofthe High Court under Article 227, it transpires that the main object of this Article is to

keep strict administrative and judicial control by the High Court on the administration of justice within its territory. (m) The object of superintendence,

both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not

bring it into any disrepute. The power of interference under this Article is to be kept to the minimum to ensure that the wheel of justice does not come

to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and CourtsÂ

subordinate to High Court.

(n) This reserve and exceptional power of judicial intervention is not to be exercised just for grant of relief in individual cases but should be directed

for promotion of public confidence in the administration of justice in the larger public interest whereas Article 226 is meant for protection of individual

grievance. Therefore, the power under Article 227 may be unfettered but its exercise is subject to high degree of judicial discipline pointed out above.

(o) An improper and a frequent exercise of this power will be counter-productive and will divest this extraordinary power of its strength and vitality.

10- In light of the aforesaid judgment as no patent illegality has been committed by the trial court and the order passed by the trial court does not

suffer from any jurisdictional error, this court does not find any reason to interfere with the order dated 08/12/2016.

 No order as to costs. Certified copy as per rules.