Sairabi Sayyad Abdul Aziz deceased through her L. Rs. and others vs Abdul Rashid Abdul Majid

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 931

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Dr. Pratibha Upasani, J.
Sairabi Sayyad Abdul Aziz deceased
through her L.Rs. others .... Petitioners.
Versus
Abdul Rashid Abdul Majid.... Respondent.
Writ Petition No. 1763 of 2000, decided on 8-10-2001.
Advocates appeared :
V.S. Bedre, for petitioners.
L.B. Pallod, for respondent.

Headnote:Civil Procedure Code, 1908 - Section 10 - Stay of Suit - Requirements of - Held - Issues arising in both two suits should be directly and substantially same - Substantial identity required under Section 10 of Code - Subject matter and field of controversy between parties must be identified - Must be substantially same in earlier and latter suits. - If one carefully reads Section 10, it will be obvious that the key words while inter- pret Section 10 would be.......... having jurisdiction to grant the relief claimed... Thus it is not sufficient that the parties are same or the subject matter of the suits is same but the issues involved therein also should be same or substantially same and the relief which has been sought by the plaintiff in both the suits also should be substantially same. In fact Section 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same and proper effect must given to the language used by the legislature in Section 10 that the identity required is a substantial identity. There must be an identity of the subject matter, the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same.
Civil Procedure Code, 1908 - Sections 10 and 11 - Appli-cability of - Stay at suit - Test of - Held - Test whether final decision reached in previous suit would operate as res judicata in subsequent suit - Must be substantial identity between matters in dispute and parties in earlier and later suits. - One test of the applicability of Section 10 of the Code of Civil Procedure to a particular case is whether on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. What is essential is that there must be substantial identity between the matters in dispute and parties in the earlier and latter suits.

JUDGMENT - Dr. PRATIBHA UPASANI, J.:---Heard. Rule. By consent, Rule is made returnable forthwith and taken up for final hearing.

2. This writ petition is filed by Sairabi Sayyad Abdul Aziz, being aggrieved by the judgment and order, dated 29-6-1999, passed by the IInd Additional District Judge, Ahmednagar, in Civil Revision Application No. 10 of 1993 whereby the revision filed by the petitioner came to be dismissed. The said revision was filed by the petitioner, being aggrieved by the judgment and order, dated 24-6-1993, passed by the IIIrd Joint Civil Judge, Junior Division, Ahmednagar, in Regular Civil Suit No. 880 of 1991 whereby the learned Civil Judge allowed the application of the defendant/the respondent herein, filed under section 10 of the Code of Civil Procedure, 1908.

3. The factual matrix of the matter is as follows :

The plaintiff/the petitioner herein had filed Regular Civil Suit No. 579 of 1991 simpliciter for injunction against the defendant/the respondent herein, praying that he be restrained from making any construction on the suit property.

The plaintiff also filed another suit being Regular Civil Suit No. 880 of 1991 under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, claiming possession on different grounds against the very same defendant.

In Regular Civil Suit No. 579 of 1991 the plaintiff also filed an application for injunction and the said application was granted. Thereafter, the defendant preferred miscellaneous appeal against the said interim order which was pending before the Court.

Regular Civil Suit No. 880 of 1991 was ready for hearing and in the said suit issues were framed and it was kept for recording evidence. In the meantime, the defendant filed an application under section 10 of the Code of Civil Procedure and prayed that the proceedings of Regular Civil Suit No. 880 of 1991, be stayed. The plaintiff filed her say to the said application and after hearing both the sides, the application made by the defendant, was allowed and the proceedings of Regular Civil Suit No. 880 of 1991, was stayed.

Being aggrieved, the plaintiff approached the revisional Court by filing Civil Revision Application No. 10 of 1993, which also came to be dismissed by the impugned order, dated 29-6-1999, passed by the IInd Additional District Judge, Ahmednagar. Being aggrieved, the petitioner/original plaintiff has now approached this Court by filing the present writ petition.

4. I have heard Mr. V.S. Bedre, appearing for the petitioners and Mr. L.B. Pallod, appearing for the respondent. The contention of Mr. Bedre is that though both the suits were filed by the plaintiff against the very same defendant and even though the subject-matter of both the suits was same, namely the disputed premises with respect to which the litigation was going on between the parties, the reliefs sought in both the suits were different and the issues involved were also different. He, therefore, prayed that the impugned order be set aside and both the suits be directed to proceed separately, in accordance with law.

5. I have gone through both the judgments of the lower courts and, in my opinion, both the lower courts have erred in interpreting section 10 of the Code of Civil Procedure. For the sake of convenience, section 10 of the Code of Civil Procedure, is reproduced below :

"10. 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."

If one carefully reads section 10, it will be obvious that the key words while interpreting section 10 would be, ".

Click Here to Read the rest of this document