Judicial Analysis Court Copy Headnote Facts Arguments Court observation

MADHYA PRADESH HIGH COURT
Rajendra Kumar (Verma), J.
Smt. Pooja Soni – Petitioner
versus
Dinesh Kumar and Ors. – Respondents
Misc. Petition No.600 of 2019 and Misc. Petition No.601 of 2019
Decided on 12.11.2021

Advocates:
Counsel for the Parties:
For the Petitioner:Shri Ashish Shroti, Advocate
For the Respondents:Shri Satyam Agrawal, Advocate

IMPORTANT POINT
Stay of suit – For applicability of Section 10 of C.P.C. there must be complete identity of entire two suits – Section 10 was never intended to take away inherent power of Court to consolidate for interests of justice.

Headnote:
Civil Procedure Code, 1908 – Section 10 – Stay of suit – For applicability of Section 10 of C.P.C. there must be complete identity of entire two suits – Main issue or some issues in both suits substantially are not sufficient to hold that Section 10 of C.P.C. applies – For applicability of Section 10 test is whether on a final decision being reached in previously instituted suit, such decision would operate as res-judicata in subsequently instituted suit – Code of Civil Procedure does not specifically provide for consolidation of suits – Consolidation of suits in exercise of powers with or without consent of parties is a phenomenon well established – Object behind consolidation of suits is to avoid multiplicity of suits or proceedings, chances of conflicting decisions on same point, to prevent delay and to avoid unnecessary expenses – Object of consolidation of suits is to avoid multiplicity of proceedings and unnecessary delay and protraction of litigation – These objects are not in any way in conflict with objects of Section 10 – Section 10 was never intended to take away inherent power of Court to consolidate for interests of justice – Court may, however, refuse to consolidate suits if it would be against public policy and encourage multiplicity of proceedings. (Paras 14, 16, 20, 21 and 23)
Result: Appeal allowed.

ORDER

Rajendra Kumar (Verma), J.—Regard being had to the similitude of the facts and controversy in question, this petition is heard analogously along with M.P.No.601/2021 and a common order is being passed which covers the fate of both the petitions as referred above. For conveniences sake, facts of the case narrated in M.P.No.600/2021 are taken into consideration.

2. By the instant petition, the petitioner has called in question the legality and validity of the order dated 28.06.2018, Annexure P/4 passed by the Court of First Civil Judge Class-I, Nasrullagang, District Sehore, whereby an application filed under Section 10 of the Code of Civil Procedure by the petitioner/defendant No.3 has been rejected.

3. As per the petitioner/defendant No.3, she is the owner and in possession of the property consisting of agricultural land bearing survey Nos.272/1/2/2, 273 & 354/273 situated at village Cheech, Tahsil Nasrullaganj, District Sehore (hereinafter referred to as ‘the suit property’) purchased by her out of her stridhan and as a mark of respect, she got mutated the name of her husband (respondent No.2/defendant No.1) in the revenue record. The respondent No.2 borrowed Rs.2.00 lacs from the respondent No.1/plaintiff for treatment, which he returned to the respondent No.1. At the time of taking money, the respondent No.1 kept the Rin-Pustika in respect of suit property with him, which was supposed to be returned after getting the money back, but he had not returned the Rin Pushtika ever after receiving the money back due to malafide intention.

4. As per the petitioner, under the garb of document of loan transaction, the respondent No.1 got a sale-deed executed by the respondent No.2 in his favour on 23.04.2016. The petitioner, therefore, was constrained to file a suit for declaration that she is the sole owner of the suit property and that the sale-deed executed in favour of respondent No.1 by the respondent No.2 is null and void. She has also prayed for a decree of permanent injunction. The suit is registered as R.C.S. No.26-A/2017. The respondent No.1 has also filed a suit for permanent injunction on the strength of sale deed dated 23.04.2016 executed in his favour by the respondent No.2. The suit is registered as RCS No.23-A/2017 (new No. RCS No.38-A/2017). The respondent No.1 had filed the suit on 31st July, 2017, while the petitioner had filed the suit on 02nd August, 2017 i.e. after two days.

5. The petitioner has filed an application under Section 10 of CPC praying for stay of the suit filed by the respondent No.1 in the suit filed by the respondent No.1 i.e. RCS No.23-A/2017. The respondent No.1 opposed the application. The trial Court vide order dated 28.06.2018, Annexue P/4 disposed of the application directing stay of the petitioner’s suit (RCS No.26-A/2017) during the pendency of the suit (RCS No.23-A/2017 new No.RCS 38-A/2017) filed by the respondent No.1.

6. Learned counsel for the petitioner submits that the trial Court has failed to notice that it is the petitioner’s application, wherein she has prayed for stay of the respondent’s suit, at best, the trial Court could have rejected the application. The trial Court further failed to see that for stay of the petitioner’s suit, an application ought to have been filed in her suit. Further, the trial Court failed to appreciate that in petitioner’s suit, there are as many as six defendants while in the suit filed by the respondent No.1 there are only three defendants. Thus, it could not have been held that the parties in both the suit are same. Learned counsel for the petitioner further submits that the trial Court failed to properly appreciate the facts of the case and erroneously stayed the proceedings of the suit filed by the petitioner. It is also submitted that the trial Court has failed to consider that under Section 10 of CPC for stay of suit, an application is required to be filed in the same suit, however, in the instant case, the application was filed in another