Shashi Devi vs Raju Singh and Another

J.P. Singh, J.—This civil revision is directed against Sub Judge Jammu's order of September 3, 2007, staying petitioner's suit u/s 10 of the

Code of Civil Procedure.

While directing the stay of petitioner's subsequent suit the learned Judge has taken the following view:

The parties are litigating under the same title. The object of this section is to prevent two Courts of concurrent jurisdiction from simultaneously

trying two parallel suits in respect of same matter in issue. It is based on the principle that one cause be finally determined in one proceeding and by

one Court alone.

Having gone through the pleadings of the parties in the instant suit as well as those in the earlier suit, the certified copies of which have been placed

on record by the defendants I am in agreement with defendants that whatever averments are maple in the instant suit by the plaintiff are already

there in his counter-claim to the suit of the defendants which is prior in time having been filed on 16th of August, 2004. Whereas the instant suit

came to be filed much later and on 25th February, 2006. In both her counter-claim and instant suit plaintiff has claimed to be in possession of same

plot of land bearing survey No. 84 min measuring 5 marlas on the basis of an agreement to sell executed by one Ponam Devi in her favour which

she has claimed to have circumfenced with brick walls on all the four sides and has sought injunction against the defendants from causing unlawful

interference therein either themselves or through their agents.

A counter-claim is treated as plaint for all practical purposes and if averments therein are proved the Court can grant the relief as prayed for

therein. So matter in issue in the instant suit is already in issue in the earlier suit by the defendants as agitated by the plaintiff (herein) by way of

counter-claim and the Court concerned is competent to grant the relief as prayed for therein. Parties in both the suits are same and the subject-

matter of the instant suit as well as that of counter-claim is also the same. So, leaving aside the earlier suit of defendants, the counter-claim made by

the plaintiff itself bars her from re-agitating the same matter. Thus, the provisions of Section 10, CPC are squarely attracted.

Mr. S.K. Puri, appearing for the petitioner submits that the view taken by the learned Sub Judge is incorrect as all the parties to the subsequent

suit were not the same and the earlier suit filed by the respondents against the petitioner pertained to survey No. 83 and not 84-min.

Mr. G.S. Thakur, appearing for the respondents, however, submits that though the respondents' suit pertained to survey No. 83, but the

petitioner had filed counterclaim, making survey No. 84 min too a subject-matter of the dispute, and, in that view of the matter, the earlier litigation

between the parties pertained to survey No. 84 min also, so the petitioner's subsequent suit, though with addition of one more defendant, would

not oust the application of Section 10 of the Code of Civil Procedure.

Section 10 of the Code forbids trial of any suit in which the matter in issue is also directly or 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 the State having jurisdiction to grant the relief claimed.

It is not in dispute that parties to the subsequent suit are the parties to the earlier litigation as well and the matter in issue in the subsequent suit

i.e. pertaining to survey No. 84 min, is the subject matter of petitioner's counter-claim in the earlier suit.

In this view of the matter, merely because a new party is, added in the subsequent suit, retaining the parties to the earlier suit as well, would not

oust the application of Section 10 of the CPC to the subsequent suit on the ground that all the parties in the subsequent suit are not the same as

were there in the earlier suit, when the dispute in both the suits pertains to the same dispute which is a subject-matter of the earlier litigation.

Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, , cited by learned Counsel for the

petitioner, dealing with Section 11 of the Code of Civil Procedure, even otherwise, is not applicable to the facts of the present case, even

otherwise, because parties to the earlier suit remain the same in the subsequent suit as well.

There is no error of law or jurisdiction in the order impugned in the revision petition.

This revision petition, therefore, fails and is, accordingly dismissed along with CMP No. 152/2007.