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ORISSA HIGH COURT
Biswanath Rath, J.
Durgamadhab Das —Petitioner
versus
Bhikari Charan Das and Ors. —Opp. Parties
C.M.P. No.1375 of 2016
Decided on 2.1.2018
For the Petitioner:Mr. Sushanta Kumar Dash for M/s. Swetlana Dash and D. Mohanty, Advocates
For the Opp. Parties:M/s. Soubhagya Sundar Das, R. Sahoo, K.C. Mohapatra and S. Dash, Advocates
IMPORTANT POINT
Section 10 of CPC would apply only if there is identity of matter in issue in both suits.
Headnote:Civil Procedure Code, 1908—Section 10—Stay of suit—Section 10 restricts court from proceeding with trial of any suit in which matter is issue is also directly and substantially in issue in a previously instituted suit between same parties or between parties under whom they or any of them claim litigating under same title where such suit is pending in the same or any other court—Mandate of provision is not only to see issue is directly and substantially involved in previously instituted suit but it also required to see whether both suits involve same party or between parties under whom they or any of them litigating under same title—Section 10 would apply only if there is identity of matter in issue in both suits—Whole of subject matter in both proceedings should be identical.
Held: Reading of both the plaints and the particulars available in the plaint vide Annexures-1 & 4, there remains no doubt that there is a clear distinction involving the parties therein and the lis. is also completely different. Now coming to the provisions contained in Section 10 of the C.P.C. for determining as to whether under the circumstance, Section 10 of the C.P.C. has any application to the case or not? Reading of the provisions makes it clear that the same restricts a court from proceeding with trial of any suit, in which the matter is issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between the 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. This Court observes, the mandate of the provision is not only to see the issue is directly and substantially involved in the previously instituted suit but it also required to see whether both the suits involve the same party or between the parties under whom they or any of them litigating under the same title. Taking into consideration the plaint averments and both the suits and the dispute involved herein involving both the suits, this Court though not finds, the issue involved in both the suits either directly or substantially in issue but for the relief in the subsequent suit being dependant on the ultimate outcome in R.F.A. No.8 of 2015 particularly keeping in view the defendants involving the subsequent suit are the purchaser of the property involved in the earlier suit being purchased from the defendants in the earlier suit, so to say the defendants in the subsequent suit have stepped into the shoes of the defendants in the earlier suit. Therefore, there remains no doubt that the result in the earlier suit now pending in first appeal is very much dependant on the ultimate outcome in the earlier suit. In paragraph nos.8 & 12 of the judgment in the case of National Institute of Mental Health & Neuro Sciences, appellant versus C. Parameshwara, respondent as reported in AIR 2005 Supreme Court 242,
(Paras 9 and 11)
Result: Civil Miscellaneous Petition allowed.
Biswanath Rath, J.—This Civil Miscellaneous Petition has been filed challenging the order passed by the learned Civil Judge (Jr. Divn.), Jajpur in C.S. No.93 of 2013 involving an application under Section 10 of the Code of Civil Procedure being moved by the plaintiffs as find place at Annexure-7 of the civil miscellaneous petition.
2. Short background involved in the case is that the petitioner as the plaintiff along with the other co-sharers filed title suit vide T.S. No.113 of 1997 on the file of learned Civil Judge (Jr. Divn.), Jajpur for declaring the gift deeds as void since the defendant no.2 Sudhansu Mohan Das is not the adopted son of late Satyendra and further, the possession of the defendants 1 & 2 therein over the disputed property in favour of the plaintiff and also for permanent injunction restraining the defendant nos.1 & 2 from claiming any interest over the suit land. Plaintiff-petitioner has lost his attempt in the above suit vide R.F.A. No.8 of 2015, which is presently pending disposal. It is while the matter stood as above, the petitioner again filed C.S. No.93 of 2013 before the learned Civil Judge (Jr. Divn.), Jajpur for permanently restraining the defendants from forcibly attempted to take possession of the disputed property. Taking into consideration the pendency of the R.F.A. No.8 of 2015, it appears, the result therein has a bearing on the result of the subsequent suit. The plaintiff-petitioner filed an application under Section 10 of the C.P.C. which matter was rejected by the order of the trial court on 16.7.2014 on the premises that the present defendants are not the parties to the suit vide T.S. No.113 of 1997. After gap of two years, the petitioner- plaintiff filed another application under Section 10 of C.P.C. on the self same ground requesting therein for stay of further proceeding of the later suit till disposal of the R.F.A. No.8 of 2015. On the premises that the opposite parties-the present defendants for not being party to the title suit vide T.S. No.113 of 1997, the trial court held that the petition is not maintainable and consequently, rejected the same. Thus, the present civil miscellaneous petition.
3. Shri Sushanta Kumar Dash, learned counsel for the petitioner taking this Court to the provisions contained in Section 10 of the C.P.C. and also to the dispute involved in both the suits contended that for the interest of justice and to avoid any inconsistent view in the later suit, the later suit should be stayed till final outcome in the R.F.A. No.8 of 2015. Consequently, learned counsel for the petitioner prayed for interference of this Court in the impugned order, thereby setting aside the same and allowing the application under Section 10 of C.P.C.
4. Shri S.S. Das, learned counsel for the opposite parties- defendants on the other hand, taking this Court to the nature of the suits involved herein, particularly the disputes and the parties required to be considered involving both the suits and further for the rejection of the earlier application under Section 10 of the C.P.C. at the instance of the plaintiff-petitioner itself by the very same court contended that there is right decision by the trial court involving the issue and thus, there is no scope for this Court for interfering in such orders in exercise of power under Article 227 of the Constitution of India.
5. Shri Das, learned counsel for the opposite parties also taking this Court to the decisions of different Court particularly the decision of Hon’ble Apex Court in the case of National Institute of Mental Health & Neuro Sciences, appellant versus C. Parameshwara, respondent as reported in AIR 2005 Supreme Court 242, in the case of Y.B. Patil and others, Appellants versus Y.L. Patil, Respondents as reported in AIR (1977) S.C. 392, in the case of Manohar Lal Chopra, Appellant versus Rai Bahadur Rao Raja Seth Hiralal, Respondent as reported in AIR 1962 (S.C.) 527, in the case of Sudhansu Mishrani and others, Petitioner
