KRISHNA KISHORE vs DISTRICT JUDGE, FATEHPUR

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(All) 2519

ALLAHABAD HIGH COURT
BEFORE : P.K.S. BAGHEL, J.
KRISHNA KISHORE AND OTHERS ....Petitioners
Versus
DISTRICT JUDGE, FATEHPUR AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 67573 of 2012, decided on 28th October, 2013)

Advocates:
Counsel :
Miss Harshita Vishwakarma for the Petitioners; S.C. and Ram Krishna Mishra for the Respondents.

Headnote:Code of Civil Procedure, 1908—Section 10—Stay of suit—Entitlement of compensation—Property acquired for road widening purpose—Dispute as to ownership of property—Relief claimed in subsequent suit—Petitioner sought stay in her earlier suit on the ground that it was dependent of the subsequent suit—Earlier suit was filed in respect of compensation for the acquition of a plot—Whereas in the subsequent suit several persons impleaded as defendant who were not party in the earlier suit—Issue in the subsequent suit was for the partition of the entire property—Hence relief of earlier suit in respect of entitlement of compensation would not affect the proceedings of subsequent suit—Impugned order passed by the Court not warrant any interference. [Paras 18 to 22]
Result; Petition Dismissed.

Judgement Key Points

The legal document discusses the application of Section 10 of the Civil Procedure Code, which pertains to the stay of a civil suit when there is a previously instituted suit involving the same parties and the same matter in issue. The key principles outlined are:

For Section 10 to be invoked, the matter in issue in both suits must be directly and substantially the same (!) (!) .
The parties involved in both suits should be the same or litigating under the same title (!) .
The previously instituted suit must be pending in a court with jurisdiction to grant the relief claimed in the subsequent suit (!) .
The scope of Section 10 is clear and mandatory, prohibiting the court from proceeding with the trial of the subsequent suit if the conditions are met (!) (!) .

In this case, the earlier suit was for declaration of entitlement to compensation for land acquired for road widening, while the subsequent suit involved a partition of the entire property. The issues and reliefs sought in the two suits are different, and the parties are not identical; the subsequent suit also involves additional defendants not party to the earlier suit (!) (!) .

The court emphasized that the decision of the earlier suit would not operate as res judicata on the subsequent suit because the issues are not identical or directly and substantially in issue (!) (!) . Furthermore, the reliefs are of different nature—one is declaratory, and the other is for partition—and are pending in different courts with different jurisdictions (!) (!) .

Based on these principles, the court concluded that the orders refusing to stay the subsequent suit were appropriate, and the writ petition challenging these orders was dismissed. The court reaffirmed that Section 10 is intended to prevent parallel proceedings only when the same matter in issue is involved in suits between the same parties, which is not the case here (!) (!) .

In summary, the application of Section 10 requires a close identity of the matter in issue, parties, and jurisdiction, which was not established in this case. Therefore, the orders refusing to stay the subsequent suit were upheld, and the writ petition was dismissed.

JUDGMENT

Hon’ble P.K.S. Baghel, J.—By way of this writ petition the petitioner has challenged the order 11.5.2013 passed by the Additional Chief Judicial Magistrate, Court No. 11, Fatehpur whereby the petitioners application in her suit under Section 10 Code of Civil Procedure, has been rejected and the order of the Revisional Court dated 29th September, 2012 whereby her revision against the order of the Additional Chief Judicial Magistrate, Court No. 11, Fatehpur dated 11.5.2013 has been rejected.

2. The essential facts of the case are that one Krishna Kishore now deceased instituted a civil suit No. 189 of 2002 in the Court of Civil Judge (Senior Division) Fatehpur for declaration that he is the sole person who is entitled for compensation (a sum of Rs. 50,703.78p.) and not the defendant Nos. 1 and 2 as they have no right to receive the same.

3. Pending proceedings Krishna Kishore died and the present petitioner Smt. Sheelwati Gupta his wife and Km.Pragati Gupta (Minor) daughter were substituted as his legal heirs.

4. The case of the petitioner/deceased was that his father Dev Nand Gupta had divided his property in the year 1982 into three equal shares between all the three sons namely Jugal Kishore/respondent No. 3 herein and Reghunath Prasad Gupta/respondent No. 4 herein and the petitioner Krishna Kishore (deceased). It is stated that total agricultural land in the name of Dev Nand Gupta was bout 56 bigha and it was also divided into three shares. The petitioner No. 1 was provided an area of 18 bigha, 9 biswa and 10 Kari of land in Gata No. 346 and 347 now new No. 560. It is alleged that the respondent Nos. 3 and 4 fabricated a will dated 22.4.1985 and 13.9.1989 in favour of Smt. Rajrani Devi wife of Jugal Kishore and Smt. Sampatti Devi wife of Raghu Nath Prasad Gupta of the entire proper including 56 bigha agricultural land. Thus Kirshna Kishore/petitioner deceased was totally excluded from his share.

5. Aggrieved by the said illegal action of the said respondents the petitioner No. 1 instituted a civil suit No. 144 of 1990 for cancellation of alleged fabricated will dated 22.4.1985 and 13.9.1989. The said suit was decreed and the will deed were cancelled by the learned Civil Judge (Senior Division) Fatehpur. From the record it appears that the said judgment attained finality.

6. It is stated that in the year 2002 there was a road widening of Nation Highway -2 and for the said purpose a part of Gata No. 560 measuring 3002 sq.mt. Was acquired by the concerned authority for the road widening purpose. The petitioner along was entitled for the compensation as the plot No. 560 was alloted in his share by his late father, therefore, he was exclusive owner and in possession of the land.

7. But the respondent Nos. 3 and 4 without justifiable cause moved an application before the competent authority for their share in compensation awarded for the acquisition of the said land.

8. Aggrieved by the said illegal action of the respondent Nos. 3 and 4 the petitioner filed a suit No. 189 of 2002 for declaration of his right in the property acquired by the competent authority in the compensation. During the pendency of the said appeal the petitioner No. Krishna Kishore died and petitioner No. 1/1 and 1 /2 herein were substituted as his legal representative.

9. Subsequently the petitioner Nos. 1/1 and 1 /2 herein filed another civil suit No. 229 of 2007 Smt. Sheelwati Gupta v. Raghunath Prasad Gupta, under Section 176 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 (for short UPZA & LR Act) before the Sub. Divisinal Magistrate, Fatehpur. The said suit is still pending. It is stated that the property in dispute viz. Gata No. 560 is also the subject-matter of the said dispute.

10. The petitioner moved Application 48 C under Section 10 of CPC on the premise that the outcome of first suit No. 189 of 2002 is Dependant on the subsequent suit No. 229 of 2007 therefore the proceedings of suit No. 189 of 2002 may be stayed till the decision

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2013 Supreme(All) 2519

ALLAHABAD HIGH COURTBEFORE : P.K.S. BAGHEL, J.KRISHNA KISHORE AND OTHERS ....PetitionersVersusDISTRICT JUDGE, FATEHPUR AND OTHERS ....Respondents(Civil Misc. Writ Petition No. 67573 of 2012, decided on 28th October, 2013)

Cases Referred (9)

ALLAHABAD HIGH COURT
BEFORE : P.K.S. BAGHEL, J.
KRISHNA KISHORE AND OTHERS ....Petitioners
Versus
DISTRICT JUDGE, FATEHPUR AND OTHERS ....Respondents
(Civil Misc. Writ Petition No. 67573 of 2012, decided on 28th October, 2013)