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2019 Supreme(Gau) 1356
IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
SUMAN SHYAM, J.
Narayan Chandra Paul, S/O Late Jitendra Mohon Paul – Appellant
Versus
Adhir Chandra Paul And 2 Ors. – Respondents
CRP(I/O) 86 of 2017
Decided on : 21-05-2019
Advocate Appeared:
For the Appellant : MR .B MALAKAR
Point of Law: Object underlying section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue.
Headnote:
Constitution of India, 1950 - Article 227 – Code of Civil Procedure, 1908 - Section 10, 11 - Land - Decree for declaration of right, title and interest - Stay of suit - Petition arising out of Title Suit rejecting application filed by petitioner under Section 10 of CPC has been put under challenge – Parties are admittedly not same and date of accrual of cause of action also appears to be different - Para 11.
Finding of the Court:
From materials available on record, it is doubtful as to whether issues involved in both suits are directly or substantially same - Parties are admittedly not same and date of accrual of cause of action also appears to be different - Leaving aside said aspect of matter, Court is of opinion that former suit having been decreed, section 10 CPC would have no application in case - Once issues arising in former suit have been adjudicated by competent court and suit has been finally disposed of on merit, matter would fall within ambit of section 11 of CPC and not section 10 of CPC - Once former suit is disposed of on merit section 10 would cease to have any application in matter and in such circumstances, applicant can at best raise plea of res-judicata in subsequent suit – Court is of opinion that learned Trial Court has rightly rejected prayer made by petitioner under Section 10 CPC - Pendency of an appeal arising out of a decree passed in former suit cannot be a ground to apply Section 10 CPC for stay of subsequent suit.
Result: Petition dismissed.
JUDGMENT :
Heard Mr. N. Dhar, learned counsel for the petitioner. None has appeared for the respondent despite service of notice.
2. In this revision petition filed under Article 227 of the Constitution of India, the order dated 18-01-2017 passed by the court of learned Civil Judge, Karimganj in Misc. Case No. 164/2016 arising out of Title Suit No. 07/2016 rejecting the application filed by the petitioner under Section 10 of the CPC has been put under challenge.
3. The petitioner is the defendant No. 1 in Title Suit No. 07/2016 instituted by the respondents as plaintiffs. The case of the petitioner, in brief, is that the respondents as plaintiffs had earlier instituted Title Suit No. 09/2009 before the court of learned Munsiff No. 1, Karimganj seeking a decree for declaration of their right, title and interest over the second schedule land; for recovery of possession and for other consequential relief(s). The aforesaid suit was decreed by the learned Trial Court on 21-01-2015, where-after, the present petitioner had preferred a title appeal. The title appeal having been dismissed by the first appellate court, the petitioner has preferred a second appeal against the concurrent judgment and decree arising out of Title Suit No. 09/2009 which is pending disposal before this Court. Title Suit No. 07/2017 was instituted by the respondents as plaintiffs on 26-02-2016 whereby, the present petitioner No. 1 has been impleaded as defendant No. 1. Besides the petitioner, there are 04 other defendants in Title Suit No. 07/2016. The petitioner had filed an application under Section 10 CPC praying for stay of further proceeding in Title Suit No. 07/2016, which was rejected by the learned Trial Court by the impugned order dated 18-01-2017. Hence, this petition.
4. By contending that an appeal is a continuation of the suit, Mr. Dhar, learned counsel appearing for the petitioner submits that there is a strong possibility that the second appeal preferred by the petitioner against the decree passed in Title Suit No. 09/2009, as affirmed by the lower appellate court, would be set aside in which eventuality, Title Suit No. 07/2016 would not be maintainable. Under the circumstances, Mr. Dhar submits that the learned Trial Court had committed manifest error in interpreting Section 10 of the CPC and holding that the subject matter of both the suits are not same and/ or identical.
5. In support of his above argument Mr. Dhar has placed reliance on the following decisions:
(a) National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara; AIR 2005 SC 242.
(b) Jugometal Trg Republike Vs. Rungta & Sons (Pvt.) Ltd.; AIR 1966 CALCUTTA 382.
(c) Smt. Ambika Sahu Vs. Smt. Sumitra Sahu; AIR 1990 ORISSA 127
(d) Arun General Industries Ltd. Vs. Rishabh Manufacturers Pvt. Ltd. & Ors.; AIR 1972 CALCUTTA 128
(e) M/s Fulchand Motilal & Anr. Vs. M/s Manhar Lall Jetha Lall Meht; AIR 1973 PATNA 196
(f) Mahangu Prasad Sah & Anr. Vs. Prayag Sah & Ors.; AIR 1975 GAUHATI 40.
6. As noticed above the former suit, i.e. Title Suit No. 09/2009 was instituted by the respondents, i.e. the plaintiffs in Title Suit No. 07/2016, against the present petitioner and four others, seeking a decree for declaration and recovery of possession over the second schedule land. The suit was decreed by the learned court below on 21-01-2015. A careful reading of the plaint filed in both the suits goes to show that the defendant Nos. 2 to 4 in Title Suit No. 09/2009 had been left out from array of parties in the subsequent suit, i.e. Title Suit No. 07/2016 and in their place, four other defendants had been added as parties. Moreover, in Title Suit No. 07/2016, the plaintiffs have claimed right, title and interest over a different plot of land which, however, includes the land mentioned in second schedule of the plaint filed in Title Suit No. 09/2009.
7. Referring to the schedule of the plaint filed in Title Suit No. 07/2016, Mr. Dhar has argued that the subsequent suit is nothing but a replica of the
