V.P Vrinda v. K. Indira Devi And Others

1. Revision petitioner in this C.R.P is the second defendant in O.S 811 of 1993 and petitioner in I.A 3082 of 1993. She filed a petition under Section 10 of the C.P.C for staying all further proceedings in the said suit till the disposal of O.S 106 of 1993 instituted by her. By the impugned order the learned Munsiff did not allow the prayer for stay; but allowed consolidation of the two suits. The said order is under challenge in this revision.

2. It is an admitted case that the subject matter in both the suits is the same. Defendants in O.S 106 of 1993 are the plaintiffs in O.S 811 of 1993. In that the plaintiff in O.S 106 of 1993 and her husband are the defendants. Thus the parties in both the suits are substantially the same particularly when according to the petitioner, the 2nd defendant has no independent claim and that he is looking after the property as her husband. Both the suits are for a decree of permanent injunction. The earlier instituted suit is O.S 106 of 1993. As noticed, the petition filed by the second defendant in O.S 811 of 1993 was to stay further proceedings in the said suit till the disposal of the earlier instituted suit O.S 106 of 1993.

3. Learned counsel for the revision petitioner contended that it is a case where all the ingredients of Section 10 of the C.P.C are satisfied and therefore the petition ought to have been allowed. On the other hand, learned counsel for the respondents contended that the petition itself is not maintainable, the conditions under Section 10, C.P.C is not satisfied and he alternatively contended that the prayer in the petition is such that the same cannot be entertained under Section 10 C.P.C The prayer is to stay all further proceedings in the said suit whereas under Section 10, C.P.C only the trial of the suit can be stayed.

4. Before going into the merit of the argument, it will be convenient to understand the scope of Section 10, C.P.C Under Section 10, C.P.C only the trial of the suit can be stayed and the conditions therein are: the issue in the earlier suit should be directly and substantially in issue in the subsequently instituted suit; the said suit must, be between the same parties or their representatives, and there should be identity of title agitated in both the suits.

5. Here there is no dispute that the subject matter in both the suits are the same. Except that in O.S 811 of 1993 the husband of the petitioner also is made a party, the parties in both the suits also are the same. For the purpose of the operation of Section 10, C.P.C, it is not necessary that all the parties on either side should be the same in both the suits; it is enough if there is a substantial identity of the parties. From the averments in the affidavit, it is clear that there is substantial identity of the parties in both suits.

6. One of the contentions raised by the learned counsel for the respondents is, inasmuch as copy of the plaint in O.S 106 of 1993 is not produced along with the petition, the petition is not maintainable and it is also his case that the petition is premature as no written statement is filed in O.S 811 of 1993. Learned counsel relied on the decision in S.K Rungta & Co. v. Nawal Kishore, AIR 1964 Calcutta 373 in support of his contention. In that decision it is held that though normally the court would not allow a party to move an application under Section 10, C.P.C unless he has filed his written statement, the court would entertain the application for stay as he had annexed the copy of the plaint in the previously instituted suit. Reliance was also made in the decision in L.R Singh v. H.D Sharma, AIR 1964 Manipur 2 where also it is held that parties should have filed their written statement and that issues have already been framed. As is noticed, the decision in S.K Rungata & Co. case, AIR 1964 Cal 373 does not insist that the petition can be filed only after the issues are framed in both the suits. There, since the petitioner had produced copy of the plaint in the earlier instituted suit, the petition under Section 10, C.P.C was allowed. In the decision in C.L Tandon v. Prem Pal Singh, AIR 1978 Delhi 221 it is observed that such a petition cannot be disposed of without the court being clear as to what are the matters in issue in the two suits and the filing of the written statement is usually insisted upon with that end in view. But in that case since the copy of the plaint in the earlier case was produced the court hied that it will serve no purpose in putting of the consideration of the said petition.

7. As noticed, in this case, both the suits are for permanent injunction. The petitioner stated in his affidavit to the petition under Section 10, C.P.C as to the details of her claim. She averred that O.S 106 of 1993 was filed on the basis that she was put in possession of the plaint schedule properties in pursuance of an agreement to sell which was executed by the 3rd plaintiff, the Power of Attorney Holder of plaintiffs 1 and 2 in this case. That the allegations in the said suit was as stated in the affidavit is not denied. Thus, though the copy of the plaint in O.S 106 of 1993 is not produced the case of the plaintiff in that case since is evidenced in this proceedings the petition cannot be dismissed on the ground that copy of the plaint is not produced, or that written statement is not filed in this case. In the circumstances the petition cannot be dismissed as premature.

8. The next condition to be satisfied is that the issue in this case must be directly and substantially in issue in the previously instituted suit viz O.S 106 of 1993. According to the learned counsel for the respondents this condition is not satisfied in this case as according to him the cause of action in the two suits are not the same. Section 10 of the C.P.C does not bar institution of the suit, it bars only trial. It is not necessary that the relief prayed for in both the suits should be identical. Here the reliefs are the same. The matter in issue in this case is directly and substantially in issue in the previously instituted suit. In the context ‘substantially’ could mean of importance and value. In the decision of this court in M.S Balasubramanyan v. Sakthivel, (1990) 2 Ker LJ 853 it is observed that if the decision in one suit has telling effect on the later suit, it can be said that the matter in issue in both the suits is directly and substantially the same.

9. Of course the suit being one for permanent injunction the cause of action for one suit need not be the same as in the other suit. But Section 10, C.P.C in terms does not require identity of the cause of action. As noticed, what is necessary is the issue in this case should be direcly and substantially in issue in O.S 106 of 1993 also. With due regard to the scope of the allegation, it is clear that what is important for adjudication is the possession of the respective plaintiffs on the date of institution of the suits. In that matter, a decision to the effect that the plaintiff in one suit is or is not in possession is of importance and value deciding as to the possession of the plantiff in the other case. Certainly the decision in one suit as to the said aspect will have strong impact on the decision in the other case. Thus the matter in issue in this suit is also directly and substantially in issue in O.S 106 of 1993.

10. But the focus of the contention by the learned counsel as to the maintainability of the petition is that whereas Section 10, C.P.C envisages stay of the trial, the prayer in the petition under Section 10 is to stay all further proceedings in this suit so that the said prayer if allowed could take in not only trial but also every other proceedings including interlocutory applications. In this context it is worth to note that in O.S 106 of 1993 the revision petitioner moved a petition for interim injunction that was dismissed against the said order revision petitioner preferred a C.M.A According to the revision petitioner though the respondents also filed a petition for injunction in O.S 106 of 1993 that was later dismissed as the same was not pressed. It was after that they filed this suit. In this suit also, according to them they have moved a petition under Order 39, Rule 1, C.P.C for a prohibitory injunction against the revision petitioner. That petition, according to the learned counsel for the revision petitioner has been heard. It is in that context, learned counsel for the respondent maintained, even if it is found that this suit is liable to be stayed under Section 10, C.P.C that will not in any way affect the jurisdiction of the court to entertain interlocutory application for interim injunction. In the decision in Balakrishnan v. Velayudhan, AIR 1980 Kerala 161 this court held that an interlocutory order in the nature of issue of injunction, or appointment of a receiver, or an order of attachment before judgment since cannot be regarded as a matter affecting the trial of the suit cannot be stayed under Section 10, C.P.C learned counsel for the revision petitioner contended that an interlocutory application in the nature of injunction will affect the trial of the suit and therefore the same too is liable to be taken in by an order of stay under Section 10, C.P.C In Balck's Law Dictionary, V Edition at page 1348 the meaning of ‘trial’ is given as:—

“A judicial examination and determination of issues between parties to action, Gulf, C. & S.F Ry. Co. v. Smith, Okl., 270 P. 2d 629, 633; whether they be issues of law or fact, Pulaski v. State, 23 Wis. 2d 138,126 N.W 2nd 625, 628. A judicial examination, in accordance with law of the land, of a cause, either civil of criminal, or the issues between the parties, whether of law or fact, before a court that has proper jurisdiction”.

Therefore, the examination of facts or law for the purpose of determining issues in trial.

11. Learned counsel for the revision petitioner relied on the decision in Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786 wherein it is held, whenever a Trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated as judgment within the meaning of the Letters Patent. The point urged by the learned counsel is, though an order is couched as an interlocutory order if it affects the valuable right of a party since has to be treated as a judgment, the proceedings in which such an order is rendered has to be treated as trial. First of all it must be noted that what was considered in the said decision was as to the scope of Letters Patent, Clause 15 to see whether an order can be said to be judgment within the meaning of the said clause. The principle laid down therein evidently cannot be applied for determining ‘tiral’ under Section 10, C.P.C The learned counsel also relied on the decision in K.S Das v. State of Kerala, (1992) 2 Ker LT 358 in support of his aforesaid argument. There what came up for consideration was whether an appeal would lie from an interlocutory order under Section 5(i) of the High Court Act, 1958 (Kerala). It was held that an appeal would lie against the orders passed by the High Court in the miscellaneous petition filed in writ petition provided such orders substantially affect or touch upon the substantial rights or liabilities of the parties and cause substantial prejudice to the parties. Here too what was considered was the scope of Section 5(i) of the High Court Act, 1958 (Kerala). The principles therein cannot apply in judging the scope of ‘trial’ under Section 10, C.P.C because trial in the context of a suit would postulate the proceedings for adjudication of the issues raised as per the pleadings of the parties. These decisions, therefore, cannot help the revision petitioner. Therefore, the revision petitioner is not entitled to a stay of all proceedings, though the trial of the suit is liable to be stayed, under Section 10, C.P.C

12. The question now remains for consideration is whether in the face of nature of prayer in the petition trial of O.S 811 of 1993 can be stayed. When a party prays for a larger relief and ultimately it is found that he is entitled only to a lesser relief, the court has got jurisdiction to grant lesser relief. Here the petitioner wanted stay of not only trial of the suit but also the other proceedings. From the above discussion, the revision petitioner is entitled to have only the trial of the suit stayed under Section 10, C.P.C Clearly, therefore, even if the trial of the suit is stayed, the court will be entitled to pass interlocutory orders in the nature of injunction, appointment of receiver or an order of attachment before judgment. In so far as a petition under Order 39, Rule 1, C.P.C is concerned the court would be concerned only with prima facie case, irreparable loss and injury, and balance of convenience. A finding one way or other in that aspect need not affect the consideration of the issues in the suit. An enquiry as regards the said aspect cannot be treated as trial within the meaning of Section 10, C.P.C Therefore, a stay of trial of the suit under Section 10, C.P.C cannot bar the court from entertaining such an interlocutory application.

In the result the order under challenge is set aside and the trial of O.S 811 of 1993 is stayed till the disposal of O.S 106 of 1993. It need hardly be said that the jurisdiction of the court to entertain an interlocutory application in the nature of injunction etc. will not be affected by the said stay.

Petition dismissed.