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2023 Supreme(Online)(DEL) 8973
HIGH COURT OF DELHI
Chandra Dhari Singh, J
Kumari Laxmi – Appellant
Versus
Rama Devi – Respondent
C.R.P. 235/2019
For the Appellants/Petitioners: Manoj V. George, KM Vignesh Ram
For the Respondents: Praveen Agrawal, Manish Gandhi, Chirag Kaushik
Section 10 of the Civil Procedure Code requires complete identity of subject matter between suits to grant a stay. A subsequent suit for partial partition of properties omitted from a prior suit is not barred if the rule against partial partition does not apply under the specific circumstances.
Headnote:(A) Civil Procedure Code, 1908 - Section 10 - Stay of suit - Res sub judice - Object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue - Fundamental test to attract Section 10 is whether on final decision being reached in previous suit, such decision would operate as res judicata in subsequent suit - Section 10 applies only if whole of subject-matter in both suits is identical - (Paras 38, 40, 41)
(B) Partition Suit - Partial Partition - General rule prohibits partial partition to avoid multiplicity of proceedings and conflicting findings - Rule against partial partition is not absolute and admits of exceptions - Partial partition permissible where different portions of property lie in different jurisdictions or where properties are distinct and non-inclusion does not cause inconvenience to parties - (Paras 53, 54, 55, 56)
Facts of the case:
The petitioner (daughter) challenged an order staying her partition suit filed for properties situated in one jurisdiction, on the ground that a prior partition suit filed by a respondent (son) regarding properties in another jurisdiction rendered the second suit liable to stay under Section 10 of the Civil Procedure Code, 1908. The trial court had granted the stay of the subsequent suit.
Findings of Court:
The Court observed that while the law generally disfavors partial partition, the rule is not inelastic. Since the properties in the subsequent suit were not included in the primary suit and the respondent failed to establish that the entire estate was subject to identical issues, the mechanical application of Section 10 was inappropriate. The Court emphasized that for Section 10 to apply, the matter in issue must be directly and substantially the same across both suits.
Issues: Whether the subsequent partition suit concerning properties not included in a previous partition suit can be kept in abeyance under Section 10 of the Civil Procedure Code, 1908.
Ratio Decidendi: The court ruled that Section 10 mandates identity of the entire subject matter for staying a subsequent suit. Where properties are omitted from a prior suit, the subsequent suit for such remaining properties can continue, as the rule against partial partition is one of equity and convenience and not a strict bar when exceptions exist.
Result: Revision petition allowed; impugned order set aside; stay vacated.
| Table of Content |
|---|
| 1. procedural history and factual context of the partition suits. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. petitioner's arguments against the application of section 10 cpc. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18) |
| 3. respondent's contentions regarding the hotchpot doctrine and section 10 cpc. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 4. scope and limitations of high court's revisional jurisdiction. (Para 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36) |
| 5. partial partition is permissible and section 10 cpc does not bar separate suits for properties not included in previous suits. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62) |
| 6. final order setting aside the stay of the partition suit. (Para 63 , 64 , 65) |
J U D G M E N T
CHANDRA DHARI SINGH, J.
1. The instant revision petition is preferred against the stay of the partition suit under Section 10 of the Civil Procedure Code, 1908 (‘CPC’ hereinafter) granted by the learned Trial Court, wherein the Court had stayed the suit for partition filed by the petitioner in New Delhi vide order dated 31st august, 2019.
FACTUAL MATRIX
2. The petitioner is the daughter of late Shri Brajbihari Prasad (‘the deceased’ hereinafter) who died intestate on 13th June, 1998. The respondent no. 1 is the wife of the deceased and the other respondents are the children of the deceased.
3. The respondent no. 5, son of the deceased filed a suit for partition bearing no. 71/2018 (‘Bihar Suit’ hereinafter) on 28th February, 2018 in Bihar before the Motihari District Court for apportioning the properties of the estate located only in Bihar.
4. Subsequently, the petitioner, i.e., the plaintiff before the learned Court below, filed a suit for partition before the Tis Hazari Court, New Delhi, bearing Civil Suit No. 876/2018 (‘New Delhi’ Suit hereinafter) on 14th March, 2018 seeking partition of the immovable properties that are situated in New Delhi on the ground that the same were not included in the partition suit filed by the respondent no. 5 in Bihar.
5. Consequently, the respondent no. 5, i.e., the defendant before the learned Trial Court filed an application under Order VII Rule 11 of the CPC read with Section 10 of the CPC on the grounds that a suit for partition had already been filed before the Trial Court in Bihar and therefore, the suit filed by the petitioner is liable to be stayed and dismissed.
6. During the pendency of the said application, the matter was referred for mediation and was pending before the Delhi High Court Mediation Centre for a year and had more than 20 sittings. However, the parties could not arrive at an amicable settlement.
7. Consequently, vide the impugned order dated 31st August 2019, the learned Trial Court allowed the application qua Section 10 of the CPC, thereby, staying the operation of the above said on the ground that a former suit was pending before the Trial Court in Bihar.
8. Further, vide the same order the learned Trial Court dismissed the application qua the rejection of the plaint, since the applicability of the provisions under Order VII Rule 11 of the CPC does not exist in the Suit before it.
9. In the said impugned order, the learned Trial Court held that the entire property, be it in Delhi or in Bihar, constituted a single estate of the deceased which is the subject matter of partition and the same cannot be split so as to seek piecemeal partition and therefore, Section 10 application filed by the respondent was allowed.
10. Aggrieved by the same, the petitioner has preferred the present revision petition under Section 115 of the CPC, seeking the following reliefs:
“a) To summon the record of the Civil Suit being CS No. 876/2018. and/or
b) Set-aside the Impugned Judgment/Order dated 31.08.2019 passed by the Ld District Sessions Court, Tis Hazari, in CS No. 876/2018, titled Lakshmi Kumari vs Rama Devi & Ors, and revive the stayed suit; and/or
c) Dir
