Pal Singh vs Sarwan Singh and Others

Swatanter Kumar, J.—In order to examine the merit of the submission, raised on behalf of the petitioner, while impugning the order of the learned Civil Judge (Senior Division), Phillaur, dated 31.1.1998, in this revision, reference to the provisions of Section 10 of the CPC would be essential.

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 the 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 bare reading of the provisions of Section 10 of the CPC indicates that three basic ingredients, before the Court order directing the stay of the suit subsequently instituted, are that the matter in issue are also directly and substantially is the issue involved in the previously instituted suit, between the same parties or between under whom they or any of them claim litigating under the same title where the suit is pending in the same or any other Court in India even beyond the local limits of that Court.

An application in the suit, out of which the present revision has arisen, was filed for consolidation of the other suit being Suit No. 85 of 1984 titled Sarwan Singh v. Avtar Singh and Ors. The application was filed on the basis that the present suit instituted by Sarwan Singh against Jaspal Singh and others relates to the same property for which the relief had been claimed in that suit titled as Sarwan Singh v. Avtar Singh and Ors., where the Will dated 16.9.1980 allegedly executed by Karam Singh in favour of defendants 8 and 9 in the present suit was subject matter of the issue, as such, it was prayed that both the suits should be consolidated as provided u/s 10 of C.P.C. though specific prayer for stay was not made.

The said application was contested by the other side pleading that none of the ingredients either for stay of suit or for consolidation were satisfied, as such, the application ought to be dismissed. However, the learned trial Court, vide its order dated 31.1.1998, allowed the application to the extent that the parties were directed to conclude evidence in the present suit and it was stated that Suit No. 85 of 1984 will be disposed of alongwith the present suit. This order is assailed in the present revision petition.

At the very outset, it needs to be noticed that learned counsel for the parties were at item, that parties in both the suits are not common, but are substantially different. The property in both the suits is different and distinct. The property, which is subject matter of one suit is not in any way involved in the other suit. However, the basic argument of the learned counsel for the respondent was that the some parties are common and the basic question that falls for determination in regard to the heirs of Karam Singh, who are claiming benefits out of Will dated 16.9.1980, would materially affect the decision in the present suit as well.

On the other hand, it was contended by the learned counsel for the petitioner that even the decision on the question of Will have no bearing on the present suit inasmuch as the cause of action and scope of present suit is totally distinct and different and decision of one is not interdependent upon other. The scope for adjudication in the present revision petition is, therefore, narrowed, in view of the fact that the parties in the suit are not common. In fact, they are materially different. The property in suit No. 85 of 1984 is not directly involved in any way in the subsequent suit. In regard to the matter in issue being materially and substantially the same in both suits, it needs to be noticed that Suit No. 85 of 1984, which has been filed by the plaintiffs, is directed against the natural heirs of Karam Singh deceased on the basis of the Will dated 16.9.1980. Thus, issue in that suit is simplicitor inheritance to the property of the deceased Karam Singh, while the subsequent suit i.e. suit No. 403 of 1992 has been filed by the present petitioner, which challenges the sale deed executed by Jaspal Singh, as attorney of deceased Karam Singh. Thus, in the present suit, the ownership over the property of Karam Singh is admitted that it is the question of valid power of attorney in favour of Jaspal Singh, who is not even a party in the prior suit. Right of inheritance in no way determine upon the validity or genuineness of power of attorney from a person, who is admittedly and even according to all the parties was the owner of the property i.e. deceased Karam Singh. Thus, it is very difficult for this court to come to the conclusion that issue in both the suits are materially and substantially identical or the findings of one suit will materially or substantially effect the other suit.

At this stage, reference could be made to a Division Bench Judgment of Calcutta High Court in the case of Adhish Chandra Sinha Vs. Hindusthan Gas and Industries Ltd. and Another, where the Court held as under-

"In order to attract Ssection 10 the subject-matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. In that way the subject-matter of two suits must be identical. Merely because one of the questions in issue is that same as in the other suit would not make the subject-matter identical.

Held, that the two suits did not involve the same subject-matter or even the principal issue involved in both the suits was not identical. The subsequent suit might succeed on any of the grounds being made out. One of the issues that might arise for consideration in both the suits with regard to the validity of the notice to quit given by the tenant might be identical. But that does not make the subject-matter in issue in both the suits identical nor can it be said that was the principal issue in the subsequent suit. It is, therefore, difficult to hold that the subject-matter in issue in the subsequent suit was directly and substantially in issue in the former suit. Hence Section 10 could not be invoked. Moreover, it would not be just and proper for any court to use its discretion and direct stay of the subsequent suit."

Learned counsel for the petitioner in order to substantiate his aforestated submission relied upon the cases C.L. Tandon Vs. Prem Pal Singh etc., J.C. Roy Chowdhury Vs. Krishna Paper Board Mills and Another, , Anant Ram and Another Vs. Mahesh Prasad Thathera and Another, and Ram Charan Vs. State of U.P. and Others, .

In view of the well enunciated principle of law, I have no hesitation in setting aside the impugned order and dismissing the application of the respondents herein for consolidation of suits. While passing such order, the Court has to take into consideration the stages of suit and the likelihood of the serious prejudice to the rights of the parties to suits. In the present case, the suit earlier instituted raises entirely a different question for determination and has reached at the final stage, while in the present suit would no way change the right of the heirs of the deceased Karam Singh claiming through Will executed admittedly by the true owner of the property in question. The validity of power of attorney in favour of Jaspal Singh cannot in any way substantially or materially have been bearing on the matter in issue because admittedly Karam Singh was the true and lawful owner of the property.

For the reasons aforestated, I find merit in this revision and allow the same, without any order as to costs.