Kota Sreeramulu v. Kota Sreeramula

This is a revision petition filed against an order of the Subordinate Judge of Bapatla refusing to order stay of the trial of O.S No. 162 of 1920 on the file of his Court under Sect. 10 of the Code of Civil Procedure.

I shall briefly state the facts. Kota Venkata Narasayya and Kota Seshayya were two divided brothers. Kota Venkata Narasayya died in 1901 and after His death, it is said his widow Rama Lakshmamma took in adoption Kota Sriramulu as her son. As the name of his opponent also happens to be Kota Sriramulu, I shall refer to the son of Venkata Narasayya as Sriramulu (No. 1). Kota Seshayya died in 1906 and his widow Venkata Subbammah in 1919. On the death of Venkata Subbammah one Kota Sriramulu, whom I shall call Sriramulu (No. 2) who denied that Sriramulu (No. 1) was the adopted son of Venkata Narasayya claiming to be the reversioner of Kota Seshayya, filed against Sriramulu (No. 1) on 28th February 1920, O.S No. 36 of of 1920, on the file of the Court of the Temporary Subordinate Judge of Guntur for the recovery of certain properties situated at Secundrabad and in the Taluq of Ongole. The Subordinate Judge held he had no jurisdiction in regard to properties situated at Secundrabad and that if those properties were excluded from the suit, it would be cognisable by the District Munsif of Ongole and returned the plaint for presentation to that Court on 10th November 1920.

Sriramulu (No. I) on 12th November 1920 filed O.S No. 204 of 1920 against Sriramulu (No. 2) in the District Court of Secundrabad for a declaration that he was the adopted son of Kota Venkata Narasayya and for possession of the properties situated at Secundrabad.

On 20th December 1920 Sriramulu (No. 2) filed O.S No. 162 of 1920 against Sriramulu (No. 1) on the file of the Subordinate Judge's Court of Bapatla. In this suit Sriramulu (No. 2) claimed not only the properties of Seshayya but also the properties of Venkata Narasayya, his widow Rama Lakshmamma having died in March 1920.

Sriramulu (No. 1) who is the defendant in O. S. No. 162 of 1920, applied in that suit for the stay of the said suit on the ground that his suit namely O. S. No. 204 of 1920 on the file of the District Court of Secundrabad, was the previously instituted suit.

The question to be decided is, is Sriramulu (No. 1) entitled to have O. S. No. 162 of 1920 stayed under Sect. 10 of the Code of Civil Procedure? The applicant under Sect. 10 is bound to show that the ‘matter in issue’ in the suit is directly and substantially in issue in the previously instituted suit. The suit on the file of the District Court of Secundrabad relates to properties situated at Secundrabad whereas the suit on the file of the Subordinate Judge's Court, Bapatla, relates to properties within British India. Further, the former suit has reference only to properties belonging to Seshayya whereas the latter suit deals with properties not only of Seshayya but also of Venkata Narasayya.

In these circumstances can it be said that the matters in issue in the two suits are identical? Sect. 10 does not say that it is sufficient that there are some issues common to the two suits. It requires that the matter in issue in the one suit must be directly and substantially in issue in the other suit. In this case the issue common to both the suits is the factum or the validity of the adoption of Sriramulu (No. 1). That is to say, one issue is common to the two suits but the subject matters of the two suits are entirely different. If the contention of the petitioner is correct it will follow that the Court is bound to stay a latter suit merely because an issue which arises in it also arises in a suit previously instituted although the determination of the two suits depends not merely upon the decision of the common issue but also of other and entirely different issues.

I am unable to accept the contention of the petitioner. Bepin Behary Mozumdar v. Jogendra Chandra Gosh is an authority for the view that Sect. 10 is not applicable, I take the following statement of facts from that judgment: “The petitioners were defendants in a suit for rent instituted against them by the opposite party on the 6th May 1911 in the Court of the Subordinate Judge of Khulna for settlement of a fair rent and for recovery of arrears of the years 1314–1317 B.S The claim was resisted on various grounds amongst which we may mention one namely, that the plaintiffs had evicted defendants from the lands of Mauza Ula claimed by the defendants as included in their tenure, The plaintiffs did not admit that Mauza Ula was so included and apparently maintained that they themselves were lawfully in possession of those lands. The Subordinate Judge tried the suit on evidence, overruled the plea of suspension of rent by reason of eviction………… On the 9th June 1914, the defendants lodged an appeal in this Court against the decree and took as one of the grounds of objection in the memorandum of appeal that the decision as to the title to Ula was contrary to the evidence on the record. The appeal has not yet been heard. Meanwhile the opposite party have on the 12th April 1915 instituted a suit in the Court of the Subordinate Judge of Khulna for recovery of the arrears of the years 1318–1321. The defendants resist the claim, on the ground amongst others that during the years in suit they have been unlawfully kept out of the lands of village Ula. There can be no question that the title to Ula arises in the present as in the previous suit”. The judgment proceeds to say “The question, accordingly reduces to this; Is the matter in issue in the subsequently instituted suit for rent, also directly and substantially in issue in the previously instituted suit? The suits are between the same parties litigating under the same title and that requirement of the Code is fulfilled. What, then, is the meaning of the expression ‘the matter in issue’. The defendants invite us to hold that the expression is equivalent to ‘any of the questions in issue.’ The obvious answer is that if that had been the intention of the framers of the section appropriate words might have been used to bring out such sense. We are of opinion that the expression ‘The matter in issue’ has reference to the entire subject in controversy between the parties. The matters in issue that is, the subject matters in controversy are obviously different in the two suits. In the first suit, the matter in controversy is, whether A is entitled to recover from B Rs. 5,000 as rent for the year X. In the second suit the question in dispute is whether A is entitled to recover from B Rs. 3,000 as rent for the year Y. We are unable to hold that merely because the same question may be involved in the two suits, the matters in issue are identical so as to attract the operation of Sect. 10. I follow Bepin Behary Mozumdar v. Jogendra Chandra Gosh, and hold that Sect. 10 of the Code of Civil Procedure does not apply.

On behalf of the counter-petitioner it has been argued that the Court at Secundrabad has no jurisdiction to grant the relief claimed in the suit on the file of the Court at Bapatla and on that ground Sect. 10 is not applicable. It is unnecessary to decide this question as I have held that the petitioner is not entitled to invoke the provisions of Sect. 10 for the reasons already given.

In the result I would dismiss the Civil Revision Petition with costs.

C. K.Petition dismissed.