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1992 Supreme(Del) 6
High Court Of Delhi
HARNAM KAUR - Appellant
Versus
AJIT SINGH - Respondent
Civil 892 of 1990
Decided On : 01/07/1992
D.S.MARVAH, S.S.Katyal
The provisions of Section 10 CPC do not apply where the matter in issue in the two suits is not the same, the parties in both the suits are not identical, and the scope of the relief and the causes of action in both the suits appear to be different.
Headnote:
STAY OF SUIT - SECTION 10 CPC - SAME MATTER IN ISSUE - CONSOLIDATION OF SUITS - SECTION 151 CPC - COMMON EVIDENCE - INHERENT POWERS OF COURT - SUMMARY DISMISSAL OF SUIT - JURISDICTION - TRANSFER OF SUIT - COSTS.
Fact of the Case:
The petitioner filed a revision petition challenging the trial court's order staying the suit instituted by her on the ground that the matter in issue was the same as in a previously instituted suit by the respondent against the petitioner and others.
Finding of the Court:
The court held that the matter in issue in the two suits was not the same since one was a suit for injunction and the other was for declaration. The court also noted that the parties in both the suits were not identical and that the scope of the relief and the causes of action in both the suits appeared to be different.
Issues: 1. Whether the matter in issue in the two suits was the same? 2. Whether the provisions of Section 10 CPC were attracted in the present case? 3. Whether the trial court was justified in staying the suit instituted by the petitioner?
Ratio Decidendi: 1. The court held that the matter in issue in the two suits was not the same since one was a suit for injunction and the other was for declaration. The court also noted that the parties in both the suits were not identical and that the scope of the relief and the causes of action in both the suits appeared to be different. 2. The court held that the provisions of Section 10 CPC were not attracted in the present case since the decree in the previously instituted suit would not bar the subsequent suit on the principle of res judicata. 3. The court held that the trial court was not justified in staying the suit instituted by the petitioner.
Final Decision: The court allowed the revision petition, set aside the impugned order, and directed that both the suits be tried together. The court also directed that the suit previously instituted be transferred to the court of the Additional District Judge who would try and dispose of both the suits together.
( 1 ) THIS revision arises out of an order passed by the trial Court on an application of the defendant-respondent herein under Section 10 of the Code of Civil Procedure praying for the stay of the suit instituted subsequently on the basis that the matter in issue in this suit is the same as the matter in issue in the suit instituted by the defendant/respondent earlier against the petitioner and others.
( 2 ) TO appreciate the position in law, it will be in order to reproduce the Sections 10 and 151 of the Code of Civil Procedure :
S. 10. Stay of suits : 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 betore the Supreme Court. Explanation ; The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action"
S. 151 : Saving of inherent powers of Court : Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may he necessary for the ends of justice or to prevent abuse of the process of the Court,"
( 3 ) THE expression "the matter in issue is also directly and substantially in issue In a previously instituted suit beween the same parties. . . . . . . . . . " has to he construed to mean the entire subject matter of the two suits should be the same. In other words, every matter in dispute should be directly and substantially in issue in the two suits. This construction is further supported by the use of the expression "same cause of action" in the Explanation to Section 10 CPC. It has been held by this Court in Sagar Shamsher Jung Bahadur Rana and Another v. The Union of India and Others, reported as AIR 1979 Delhi 1 18 that the matter in issue means all disputed material questions.
( 4 ) IN the present case. the respondent bad instituted a suit for injunction against the petitioner and S/shri Balwant Singh and Salwant Singh. It may further be pointed out that the petitioner in the present, case is the widow of late Shri Veer Singh, while respondent and S/shri Balwant Singh and Salwant Singh are her sons. The respondent had instituted a suit for permanent injunction bearing No. Suit No. 512/90 against the petitioner herein and S/shri Balwant Singh and Salwant Singh restraining the petitioner and her two sons from selling, transferring, alienating or creating any charge on the portion of the suit property bearing No. D-90, Model Town, Delhi where the petitioner and her two sons are living claiming ownership of a portion thereof on the basis of a gift deed dated 17. 10. 86. The said deed was duly registered with the Sub-Registrar. K;shmere Gate, Delhi vide Document No. 4465 in Addl. Book No. 1 Vol. No 4648 on pages 65 to 75. In their written statement the petitioners herein have denied the existence of any right, title or interest in the said property or any part thereof in favour of the plaintiff, respondent herein. The petitioner has alleged in her written statement that she is an old lady of 80 years and is illiterate. She has further pleaded that the respondent having separated from the family in the year 1965 after obtaining his share from his late father had already built his own house where he has residing since 1965 and there could not be any question of gifting any portion of the property in question. The genuineness of the said gift deed has also been disputed In the said previously instituted suit, therefore, the Court could either grant or decline the relief of declaration claimed by the petitioner in her suit. It could not g
