W.P. No.14966.10
Writ Petition No. 14966 of 2010
25/10/2010
Shri Shobhitaditya, learned counsel for the
petitioner.
Heard on admission.
This petition under Article 227 of the
Constitution of India is directed against the order
dated 12-04-2010 passed by First Additional District
Judge, Hoshangabad, in Regular Civil Suit No. 53-
A/08. By the impugned order, an application preferred
by the petitioner/defendant under Section 10 of the
Code of Civil Procedure, 1908 (hereinafter referred to
as 'the C.P.C.') for staying the proceedings in the civil
suit has been rejected.
The suit in question is at the instance of
respondents seeking eviction and arrears of rent
against the petitioner/defendant in respect of 630 sq.
ft. of the dwelling house bearing Nazul Sheet No. 14,
Plot No. 43/1 at Surajganj, Itarsi.
The petitioner herein, in the said suit filed an
application under section 10 of the C.P.C. for staying
the proceedings on the ground that premises in
question being a part of dwelling house admeasuring
1260 sq. ft. in respect whereof one Umakant Rawat
preferred a Civil suit vide R.C.S. No. 11-A/08 on
W.P. No.14966.10
07-08-2005 for partition, mesne profit and recovery of
arrears of rent by impleading respondents 1 to 3 as
defendants No. 15 to 17 and impleading the petitioner
as defendant No. 19. It was urged that the said suit
property is a joint property of said Umakant Rawat
and defendants No. 14 and 15 (in R.C.S. No. 11-A of
2008), who, i.e. defendants No. 14 and 15 therein, as
alleged, unauthorizedly sold the property to
respondents herein. It was contended by the
petitioner herein before the trial Court in furtherance
of application under section 10 of the C.P.C. that, in
the said civil suit the trial Court framed specific issues
regarding joint ownership of plaintiff and defendants
No. 13 and 14 and the question regarding entitlement
of plaintiff therein to recover arrears of rent and the
trial Court decided the issues regarding ownership
and entitlement to recover arrears of rent and
dismissed the said civil suit vide judgment and decree
dated 20-12-2008. The said judgment and decree it is
urged now forms subject matter of challenge in First
Appeal No. 179/09.
The trial Court while dwelling upon the
contentions put forth by the petitioner/defendant
observed that the suit preferred by said Umakant
Rawat which now forms the subject matter of First
W.P. No.14966.10
Appeal No. 179/09 was for partition, mesne-profit and
recovery of arrears of rent. W hereas, the suit in
question is for eviction and arrears of rent wherein
said Umakant Rawat is not a party. The trial Court
thus observed that the matter in issue in suit in
question is not directly and substantially in issue in
the previously instituted suit which was at the
instance of Umakant Rawat. The trial Court found that
the principle as is laid down under section 10 of the
C.P.C. being not attracted, declined to stay the
proceeding of the suit in question.
Section 10 of the C.P.C. stipulates that ” 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, or before the Supreme Court.”
The object as is apparent from the aforesaid
provision is to prevent Courts of concurrent
jurisdiction from simultaneously drawing two parallel
W.P. No.14966.10
suit in respect of the same or any issue and to avoid
recording conflicting findings on issue which are
directly and substantially in issue in previously
instituted suit. In this context regard can be had of the
judgment by the Supreme Court in National Institute
of Mental Health and Neuro Sciences v. C.
Parameshwara (AIR 2005 SC 242) wherein their
Lordships were pleased to observe :
“8 . The object underlying section 10 is to
prevent Courts of concurrent jurisdiction
from simultaneously trying two parallel suits
in respect of the same matter in issue. The
object underlying section 10 is to avoid two
parallel trials on the same issue by two
Courts and to avoid recording of conflicting
findings on issues which are directly and
substantially in issue in previously instituted
suit. The language of section 10 suggests
that it is referable to a suit instituted in the
civil Court and it cannot apply to proceedings
of other nature instituted under any other
statute. The object of section 10 is to
prevent Courts of concurrent jurisdiction
from simultaneously trying two parallel suits
between the same parties in respect of the
same matter in issue. The fundamental test
to attract section 10 is, whether on final
decision being reached in the previous suit,
such decision would operate as res judicata
in the subsequent suit. Section 10 applies
only in cases where the whole of the subject
matter in both the suits is identical. The key
words in section 10 are “the matter in issue
is directly and substantially in issue” in the
previous instituted suit. The words “directly
and substantially in issue” are used in
W.P. No.14966.10contra-distinction to the words “incidentally
or collaterally in issue”. Therefore, section
10 would apply only if there is identity of the
matter in issue in both the suits, meaning
thereby, that the whole of subject matter in
both the proceedings is identical. “
Thus, unless there is an identity of the matter in
issue in both the suits before Court of concurrent
jurisdiction, the principle of section 10 of the C.P.C.
does not get attracted.
During the course of hearing learned counsel for
the petitioner has placed reliance on the judgment in
Sheela and others v. Firm Prahlad Rai Prem Prakash;
AIR 2002 SC 1264, Manohar Lal Chopra v. Rai
Bahadur Rao Raja Seth Hiralal; AIR 1962 SC 527 and
the judgment by learned Single Judge of this Court in
Poonamchand v. Murti Madanmohanji and others
[2007 (3) M.P.L.J. 340].
In the case of Manohar Lal Chopra (supra) it was
observed that the question of issuing an order to a
party restraining him from proceeding with any other
suit in a regularly constituted Court of law deserves
great care and consideration and such an order is not
to be made unless absolutely essential for the ends of
justice. (paragraph 28). It was further observed
therein :
“39. The suit at Indore which had been
instituted later, could be stayed in view
W.P. No.14966.10of s.10 of the Code. The provisions of
that section are clear, definite and
mandatory. A Court in which a
subsequent suit has been filed is
prohibited from proceeding with the trial
of that suit in certain specified
circumstances. W hen there is a special
provision in the Code of Civil
Procedure for dealing with the
contingencies of two such suits being
instituted, recourse to the inherent
powers under s. 151 is not justified. The
provisions of s. 10 do not become
inapplicable on a Court holding that the
previously instituted suit is a vexatious
suit or has been instituted in violation of
the terms of the contract. It does not
appear correct to say, as has been said
in Ram Bahadur v. Devidayal Ltd. (1)
that the Legislature did not contemplate
the provisions of s. 10 to apply when the
previously instituted suit be held to be
instituted in those circumstances. The
provisions of s. 35A indicate that the
Legislature was aware of false or
vexatious claims or defences being
made, in suits, and accordingly provided
for compensatory cost. The Legislature
could have therefore provided for the
non-application of the provisions of s. 10
in those circumstances, but it did not.
Further, s. 22 of the Code provides for
the transfer of a suit to another Court
when a suit which could be instituted in
any one of two or more Courts is
instituted in one of such Courts. In
view of the provisions of this section, it
was open to the respondent to apply
for the transfer of the suit at Asansol
to the Indore Court and, if the suit had
been transferred to the Indore Court,
W.P. No.14966.10
the two suits could have been tried
together. It is clear, therefore, that
the Legislature had contemplated the
contingency of two suits with respect to
similar reliefs being instituted and of the
institution of a suit in one Court when it
could also be instituted in another Court
and it be preferable, for certain reasons,
that the suit be tried in that other Court.”
The observation made by their lordships was in a
peculiar facts of the case therein contemplating an
order under Section 10 of the C.P.C.
The principles laid down therein though not
disputed, however, the same are not attracted in the
facts of the present case.
In Sheela and others v. Firm Prahlad Rai Prem
Prakash (supra) the issue which had cropped up for
consideration was in the context of the provision
under section 12 (1) (a) of the Madhya Pradesh
Accommodation Control Act as to whether while
seeking an ejectment on the ground of bonafide
requirement under clause (f) the land lord is required
to allege and prove not only that he is a land lord but
also that he is the owner of the premises. In our
considered opinion the principle of law laid down in
the said context is of no assistance to the petitioner in
respect of adjudication of application under section 10
of the C.P.C. as has cropped up in the present matter.
Regarding the judgment in Poonamchand v. Murti
W.P. No.14966.10
Madanmohanji and others (supra) suffice it would be
to say that the facts therein were satisfying the
requirement of section 10 which led the learned
Single Judge to stay the subsequent suit.
In the case at hand admittedly earlier suit was at
the instance of one Umakant Rawat who had filed suit
for partition, mesne-profit and arrears of rent whereas
the suit in question is at the instance of respondents
for eviction and arrears of rent wherein said Umakant
Rawat is not impleaded as a party.
In view whereof we do not perceive any illegality
in the approach of the trial Court in rejecting the
application under section 10 of the C.P.C. preferred
by the petitioner/defendant seeking stay of Civil Suit
No. 53-A/08.
In the result the petition fails and is hereby
dismissed. However, no costs.
(AJIT SINGH) (SANJAY YADAV)
JUDGE JUDGE
SC