Shri Ram Tiwary And Another v. Bholi Devi And Another Opposite Parties.

1. The present revision application has been filed by the plaintiffs-petitioners against the order dated 17-12-1992 passed by 1st Subordinate Judge, Vaishali at Hajipur in Title Suit No. 170 of 1991 staying the suit till the disposal of First Appeal No. 211 of 1981 pending before this Court.

2. The foundational facts essential for disposal of the present revision application are as follows:

The plaintiffs-petitioners filed the aforesaid suit for declaration that they have absolute right, title and interest over the properties described in schedule III of the plaint for recovery of possession regarding land described in schedule I, for confirmation of possession over the land described in schedule II of the plaint and alternatively for recovery of possession if they are found dispossessed from schedule II land during the pendency of the suit and for injunction restraining the defendants from making any construction over the land described in schedule II of the plaint.

3. The plaintiffs' case, in brief, is that plot No. 229, Khasra No. 136 in Mohalla Bagtaj Khan alias Pokhara within Hajipur town measuring 93½ decimals equivalant to 21 Kathas 10 dhurs belonged to Gauri Shankar Chaudhary who died in the year 1957 leaving behind his widow and three sons namely, Shambhu Nath Chaudhary, Anmol Kumar Chaudhary and Anil Kumar Chaudhary. Shambhu Nath Chaudhary died unmarried in jointness in the year 1974 and his share devolved upon his mother and his mother became entitled to half share in the aforesaid plot as well as in other properties of Gauri Shankar Chaudhary. Anil Kumar Chaudhary had fallen in bad company and he executed several farzi sale deeds in favour of other persons including defendants-opposite parties. He executed three sale deeds with regard to an area of 1½ kathas each in favour of Manorma Devi, Uma Devi and Shivji Sah respectively and two registered sale deeds on 21-7-79 in favour of defendant opposite parties Bholi Devi and Asha Devi with regard to 3 and 2 kathas of land respectively. The said illegal acts of Anil Kumar Chaudhary necessitated the filing of a Partition Suit No. 66 of 1979 by Anmol Kumar Chaudhary in the court of Subordinate Judge, Hajipur for partition against him, his five vendees and his mother Sudama Devi claiming 1/4th share in the ancestral properties including plot No. 229. In that suit he has challenged the five sale deeds executed by Anil Kumar Chaudhary as illegal, collusive and void. Anil Kumar Chaudhary and the aforesaid vendees including the opposite parties contested the suit on the ground that Sudama Devi had relinquished her interest in the properties in favour of her two sons namely Anmol Kumar Chaudhary and Anil Kumar Chaudhary and Anil Kumar Chaudhary had half share in the suit properties and the sale deeds executed by him are genuine and valid. The said suit was decreed on 4-10-1980 and it was held that Anil Kumar Chaudhary had interest in plot No. 229 only to the extent of 1/4th share and the sale deeds dated 21-7-79 executed in favour of the defendants-opposite parties were void and without legal necessity. Anmol Kumar Chaudhary died after passing of the preliminary decree and thereafter his share also devolved upon Sudama Devi and Sudama Devi became entitled to 3/4th share and she sold the land to different persons including the plaintiffs. She has sold 1 katha 6 dhurs to plaintiff No. 1 and 14 dhurs to plaintiff No. 2 out of plot No. 229 by registered sale deed dated 14-5-1988 and put them in possession. The defendants illegally started making construction over a portion of land purchased by the plaintiffs and in spite of request made by the plaintiffs-petitioners to defendants they did not stop their illegal act. Hence the suit.

4. After issuance of summons, the defendants appeared. However, they did not file written statement. On 30th June, 1992 they filed an application under Section 10 of the Code of Civil Procedure (hereinafter to be referred to as the Code) praying therein to stay the present suit till the disposal of the First Appeal No. 211 of 1981 pending in this High Court stating, inter alia, that they have purchased about 5 kathas of land out of plot No. 229 and they have constructed house over the same. The aforesaid partition Suit No. 66 of 1979 filed by Anmol Kumar Chaudhary against Anil Kumar Chaudhary and others has been decided against Anil Kumar Chaudhary and the present defendants and the plaintiffs of the present suit have purchased the lands out of the lands purchased by defendant opposite parties Nos. 1 and 2 and that the question involved in the present suit and in the First Appeal is directly and substantially the same and as such the present suit and the appeal pending in the High Court cannot be decided side by side and with a view to avoid the conflicting judgments the present suit be stayed till the disposal of the First Appeal pending in the High Court.

5. The trial Court after hearing the parties by the impugned order, as stated above, stayed the suit till the disposal of the First Appeal No. 211 of 1981 in the High Court.

6. Learned counsel for the petitioners contended two points in support of the application. Firstly, he contended that the application under Section 10 of the Code filed by the opposite parties in the court below was itself pre-mature and could not have been entertained by the court below for the reason that the trial of the suit had not begun in the sense that written statement was not filed by the defendants and issues were not framed and on this ground alone the impugned order should be set aside. Secondly, he contended that the issues involved in both the suits are not the same and identity of some of the issues in both the suits cannot attract Section 10 of the Code.

7. Learned counsel for the opposite parties, on the other hand, contended that the filing of written statement is not a condition precedent for entertainment of the application under Section 10 of the Code. The Court can at any stage decide the question of stay of the subsequent suit under Section 10 of the Code if from the materials on the record the court is in a position to determine that the questions involved in the previously instituted suit and the subsequent suit are directly and substantially the same. In the present case, the opposite parties-defendants filed plaint of the aforesaid title suit No. 66 of 1979 as well as the decree and other relevant documents and on the basis of which the court below came to the conclusion that the matter in issue in both the suits is directly and substantially the same and accordingly ordered for staying the subsequent suit. With regard to the second submission, he contended that the real test to determine whether the matter directly and substantially in issue in former suit as well as in the subsequent suit is the same or not is to find out as to whether the final decision in the former suit would operate as res judicata in the subsequent suit. It is not necessary that the issues arising in both the suits should be the same.

8. Before adverting to the respective submission advanced on behalf of the parties it will be apt to quote the provision of Section 10 of the Code of Civil Procedure which runs as follows:

“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 of before the Supreme Court.”

A bare reading of the aforesaid section shows that the following requirements have to be complied with before an order can be passed under Section 10 of the Code staying the subsequent suit till the disposal of the former suit:

(a) There should be two suits pending at the relevant time. It is to be stated that the suit includes appeal also.

(b) The matter in issue in the subsequent suit is directly and substantially the same in the former suit.

(c) The suit must be between the same parties or between the parties under whom they or any of them claim litigating under the same title.

(d) Both the suits should be pending in the same or any other court.

(e) The former court must have jurisdiction to grant relief claimed in the subsequent suit. The dominant object of Section 10 of the Code is that no person should be vexed twice with regard to the same matter in issue and there should not be conflicting judgments by trial of two parallel suits in respect of the same matter in issue. The provision is mandatory and if the conditions as laid down in the section are fulfilled, the court has to stay the subsequent suit till the disposal of the former suit.

9. The first question for determination is as to which stage the section can be invoked. According to learned counsel for the petitioners, as mentioned above, section can be invoked only after the trial has begun and defendant has filed written statement and issues are framed. Learned counsel for the petitioners while elaborating his submissions Contended that Section 10 of the Code itself provides that the court shall not proceed with the trial of the suit and the trial of the suit means final hearing of the matter consisting of examination of witnesses, filing of documents and addressing argument and in that view of the matter the entertainment of application under Section 10 of the Code in the present case before filing of written statement and framing of issues was not maintainable. In support of his submissions, he relied upon a decision of the Manipur Judicial Commissioner's court in the case of Laisram Rasmon Singh v. Hidangmayum Dwijamani Sharma reported in AIR 1964 Manipur 2 wherein it has been held that all the preliminaries prior to the trial up to the stage of framing the issues should be gone through in both the suits before S. 10 is sought to be applied. If that stage has not arrived, the stay of subsequent suit is clearly premature. He also relied upon a decision of the Allahabad High Court in the case of Mohd. Yusuf v. Ahmad Miya reported in AIR 1987 All 335 wherein it has been held that the decision as to whether the matter in two suits directly and substantially is the same or not has to be taken after filing of the written statement.

10. No doubt, the aforesaid two cases support the submission advanced on behalf of the petitioner. But I find myself unable to agree with the law laid down in the said cases that no application could be filed under Section 10 before the filing of the written statement.

11. This question came for consideration before the Calcutta High Court in the case of Sohrab Merwanji Modi v. Mansata Film Distributors reported in AIR 1957 Cal 727 and also in the case of S.K Rungta and Co. (Jute and Seeds) v. Nawal Kishore Devi Prasad reported in AIR 1964 Cal 373. In the case of Sohrab Merwanji Modi (supra) it was held that an application under Section 10 of the Code can be entertained even without filing of the written statement if the defendant has annexed copy of the plaint of the previously instituted suit and from which it can be found out as to what dispute between the parties is. In the case of S.K Rungta and Co. (supra) it has been held that though normally the court would not allow a party to move an application under S. 10 unless he has filed his written statement, the Court would entertain the application for the stay of suit by the defendant if he has annexed the copy of the plaint from which the dispute between the parties could be found out. The same view has been expressed by the Punjab High Court following the aforesaid two decisions of the Calcutta High Court in the case of Rup chand Dharam Chand Kanpur v. Basant Lal Banarsi Lal reported in AIR 1975 P and H 171 wherein it has been held that “though normally the Court would not allow a party to move an application under S. 10 Civil P.C unless he has filed written statement, the Court would entertain the application of the defendant for stay in a case where he has annexed a copy of the plaint in the previously instituted suit and it can be found out from the copy of that plaint as to what the dispute between the parties is. Even if the Court thought that a perusal of the two plaints was not enough to find out whether the subject matter of controversy between the parties in the two suits was identical or not, it could keep the application pending and could take it up for decision after getting the written statement filed but it should not dismiss the application at that stage”. The same view has been reiterated by the Delhi High Court in the case of C.L Tandon, G.S v. Prem Pal Singh Rawat, reported in AIR 1978 Delhi 221 and the Gujarat High Court in the case of Raunaq International Ltd. v. Ota Kandla Pvt. Ltd., Kandla reported in AIR 1987 Guj 213.

12. It cannot be laid down as a rule of law that no application under Section 10 of the Code can be entertained unless the written statement has been filed and issues have been framed. The court can entertain the application at any stage of the suit provided there is material on the record to decide the question regarding the applicability of Section 10 of the Code. Normally the application under Section 10 of the Code is to be decided after filing of the written statement as after filing of the written statement the court is in a better position to know as to whether the matter in issue in both the suits is directly and substantially the same or not. However that does not mean that the court has no jurisdiction to entertain the application prior to filing of the written statement. In the given case, the court may decide the question before filing of the written statement if the defendant makes available the copy of the plaint of the easrlier suit and the other documents which enables the court to decide as to what the dispute between the parties is. In case, if the court is not in a position to decide as to what dispute between the parties is on the basis of the plaint of previously instituted suit, the court may postpone the petition till the filing of the written statement. I find myself in respectful agreement with the views taken, as mentioned above, by the Calcutta, Punjab and Haryana, Delhi and Gujarat High Courts and respectfully disagree with the views expressed by the Manipur and Allahabad High Courts. As there is no legal bar in entertaining the application even before filing of the written statement, the contention raised on behalf of the petitioners that the application is premature is fit to be rejected.

13. So far as the second point raised on behalf of the petitioners is concerned learned counsel for the petitioners contended that the earlier suit out of which First Appeal No. 211 of 1981 arises was filed by Anmol Kumar Chaudhary against his brother Anil and mother Sudama and transferees of Anil Kumar Chaudhary for partition of the joint family properties including plot No. 229 and for declaration that sale deeds executed by Anil Kumar Chaudhary in favour of transferees including opposite parties of this case regarding portion of plot No. 229 are illegal and void whereas the present suit is for declaration of title with regard to suit land between the purchasers of Sudama Devi and purchasers of Anil Kumar Chaudhary. According to him, the entire subject matter in controversy between the parties is not the same in both the suits and as such the application under Section 10 of the Code is not maintainable. According to him, mere identity of some of the issues in both the suits is not sufficient to attract Section 10 of the Code. Learned counsel relied upon a Division Bench decision of the Calcutta High Court in the case of Shaw Wallace & Co. Ltd. v. Bholanath Mandanlal Sherawala reported in AIR 1975 Cal 411.

14. I am unable to agree with his submission on this point also. The object of Section 10 of the Code, as noticed above, is to avoid the conflicting judgments between the courts of concurrent jurisdiction. Section does not require that the matter in issue in both the suits should be same, its only requirement is that the matter in issue in both the suits should be directly and substantially the same. To decide the said question the test to be applied is whether the decision in the former suit will operate as res judicata in the subsequent suit or not. If after looking into the records the Court comes to the conclusion that the decision in former suit will operate as res judicata in the subsequent suit or non-suit the plaintiff, then it has to stay the suit. The decision in the case of Shaw Wallace & Co. Ltd. (supra) relied by the counsel for the petitioners, in my view, does not support his submission. In the said case it was held (at page 412):

“Unless the decision of the suit operates as res judicata in the other suit it cannot be said that the matter in issue is directly and substantially the same in both the suits, that is to say, the decision in one suit must non-suit the other suit before it can be said that the matter in issue in both the suits is directly and substantially the same.”

A learned single Judge of this Court considering the aforesaid question in the case of Fulchand Motilal v. Manhar Lall Jetha Lall Mehta reported in AIR 1973 Pat 196, held as follows (para 7):

“For determining whether or not the matter directly and substantially in issue in former as well as subsequent suits is the same, the test to be applied is whether adjudication of the matter directly and substantially arising in the former suit will decide not merely that suit but will also operate as res judicata in subsequent suit between the same parties, and not whether the cause of action or reliefs claimed and/or one of the issues arising in both the suits are the same.”

I find myself in respectful agreement with the law laid down in the aforesaid case and the law laid down in the said case is complete answer to the submission advanced on behalf of the petitioners. Even if the cause of action, relief prayed for or some of the issues in former and subsequent suits may differ that will not be a ground of non-application of S. 10 of the Code if the court finds that the final decision in the former suit would operate as res judicata in the subsequent suit.

15. Coming to the facts of the case it is clear that one of the issues in the former suit was whether Anil Kumar Chaudhary had right to execute the sale deeds or not in favour of defendants-opposite parties. The said question is directly and substantially in controversy in the present suit also. The petitioners claim to have purchased the same very land from Sudama Devi which have been purchased by the opposite parties from Anil Kumar Chaudhary. In the present suit the question to be decided is as to whether the sale deeds executed by Anil Kumar Chaudhary in favour of opposite parties conferred valid title on them or the sale deeds executed by the aforesaid Sudama Devi conferred valid title on the plaintiffs-petitioners with regard to the suit land. The matter in issue in subsequent suit is directly and substantially the same in the previous suit. The determination of the aforesaid question in First Appeal No. 211 of 1981 would operate as res judicata in the present suit and as such the trial Court has rightly come to the conclusion that S. 10 of the Code is attracted in this suit and the suit in question should be stayed till the disposal of the First Appeal in the High Court.

16. In my view, none of the submissions advanced on behalf of the petitioners has any force and the order passed by the lower court does not suffer from any jurisdictional error requiring interference by this Court.

17. In the result, this revision application is dismissed. However, there shall be no order as to costs.

Application dismissed.