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2003 Supreme(Bom) 1205
BOMBAY HIGH COURT AT PANAJI, GOA
V.G. PALSHIKAR, J.
Gregorio Pereira (since deceased) through L.Rs. - Appellants
Versus
Damazio Bento Pereira, Major, Bachelor and others - Respondents
Second Appeal No. 43 of 1997
Decided on: 16th October, 2003
Advocate Appeared
Mr. S.D. Lotlikar. Senior Advocate with Mr. A.D. Bhobe, Advocate for the appellants;
Mr. M.S. Usgaonkar, Senior Advocate with Mr. Sudin M. Usgaonkar. Advocate for the respondents.
The main legal point established in the judgment is the mandatory application of Section 10 of the Civil Procedure Code, which mandates the stay of a subsequently instituted suit if the issues involved are substantially the same as those in a previously instituted suit between the same parties.
Headnote:
Boundary Dispute - Civil Procedure Code - Section 10
Fact of the Case:
The original plaintiffs filed a suit claiming a mandatory injunction against the defendants to demolish an unauthorized construction and to restrain them from further construction. The suit was decreed, but the appeal filed by the original defendants was allowed, resulting in the dismissal of the plaintiffs' suit. The plaintiffs then filed a Second Appeal challenging the dismissal of their suit.
Finding of the Court:
The Court found that the lower courts had not considered the provisions of Section 10 of the Civil Procedure Code, which mandates the stay of a subsequently instituted suit if the issues involved are substantially the same as those in a previously instituted suit between the same parties. The Court held that the failure to apply Section 10 resulted in a gross miscarriage of justice.
Issues: The issues involved the non-consideration of Section 10 of the Civil Procedure Code, the miscarriage of justice due to the simultaneous trial of two suits, and the failure to stay the subsequent suit as mandated by law.
Ratio Decidendi: The Court held that the provisions of Section 10 of the Civil Procedure Code were not considered by the lower courts, leading to a miscarriage of justice. It emphasized that the trial court should have stayed the subsequent suit filed by the original defendants and that the appellate authority's entertainment of the appeals also failed for the same reason.
Final Decision: The Court set aside the impugned order, dismissed the appeal filed by the original defendants, and remitted both cases for trial to the trial court. It directed the trial court to proceed with the trial of the suit filed by the original plaintiffs and to stay the suit filed by the original defendants.
V.G. Palshikar, J.
1. This appeal is directed against the judgment and decree dated 15th February, 1997 passed in Regular Civil Appeal Nos.19 and 21 of 1993.
2. Regular Civil Suit No. 101/75/C was filed in the Court of Civil Judge J.D., Margao by the original plaintiffs/present appellants against present respondents/original defendants in the Civil Suit. Reference was thereafter made to the present appellants as the original plaintiffs and the present respondent as the original defendants.
3. Regular Civil Suit No. 101/75/C was filed by the original plaintiffs claiming the following reliefs :
"(a) For the judgment and order of this Hon'ble Court directing the defendants to demolish the illegal and unauthorised construction or erection of the extension or addition to the existing house at the rear side;
(b) For a permanent mandatory injunction restraining the defendants from making/or erecting of constructing the illegal and unauthorised erection/or construction of the extension/or addition to the existing house at the rearside at any time hereinafter;
(c) For a temporary injunction restraining the defendants, their agents, and servants/or persons claiming through them from continuing with the illegal and unauthorised erection for construction of the extension or addition to the existing house at the rearside till the final disposal of the suit;
(d) For costs of the suit;
(e) And for such other and further reliefs that this Hon'ble Court may deem fit and proper in the circumstances of the case.
4. It will be seen from the above prayers that the original plaintiffs claimed a mandatory injunction against the defendants directing them to demolish certain construction, which according to the plaintiffs was unauthorised. It was also prayed that they be restrained by appropriate injunction order from making hereafter any such illegal unauthorised construction. As an interim relief temporary injunction was claimed preventing them from further constructing or making any illegal or unauthorised construction. This suit was duly resisted by the defendants by filing written statement. All the allegations made in the plaint were denied. Issues were therefore framed and evidence was to be led thereafter.
5. During the pendency of this suit original defendants filed Regular Civil Suit No. 45/82/C in the year 1982 claiming in their suit that the original plaintiffs in the earlier suit had effected certain constructions which were not in accordance with law and claimed that the demarcation of the properties belonging to the original plaintiffs and the original defendants be decreed and ordered. This suit was also pending before the same Civil Judge J.D., Margao. After evidence was led in this case also both the suits one filed by the Original plaintiffs and the other filed subsequently by the defendants were decided by the learned Judge by separate orders on 5th February, 1993. Regular Civil Suit No. 45/82/C was dismissed by the learned trial Judge and Regular Civil Suit No. 101/75/C filed by the original plaintiffs was decreed as aforesaid by the learned Judge.
6. Being aggrieved by the decree granted in favour of the plaintiffs in Regular Civil Suit No. 101/75/C Regular Civil Appeal was filed by the original defendants. It was registered as Regular Civil Appeal No. 19/93. Regular Civil Appeal No. 21/93 was filed by the original defendants against the dismissal of their Suit being Regular Civil Suit No. 45/82/C. Both these appeals were allotted for decision to the same Additional District Judge and he, by his order dated 15th February. 1997 dismissed the appeal filed by the original plaintiffs in Civil Appeal No. 19/1993 and allowed the Appeal filed by the original defendants in Civil Appeal No. 21/93. decreed the suit filed later on by the original defendants and dismissed the suit earlier filed by the original plaintiffs. The learned lower Appellate Court therefore ordered that both the Civil Appeal Nos. 19 and 21/1993 are hereby allowed and
