Krishna Kishore And Others vs District Judge, Fatehpur And ...
2013 Latest Caselaw 6627 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 24
 

 
Case :- WRIT - C No. - 67573 of 2012
 

 
Petitioner :- Krishna Kishore And Others
 
Respondent :- District Judge, Fatehpur And Others
 
Counsel for Petitioner :- Miss Harshita Vishwakarma
 
Counsel for Respondent :- S.C.,Ram Krishna Mishra
 

 
Hon'ble Pradeep Kumar Singh Baghel,J.

By way of this writ petition the petitioner has challenged the order 11.5.2013 passed by the Addl.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 Addl.Chief Judicial Magistrate, court no.11, Fatehpur dated 11.5.2013 has been rejected.

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 no. 1 and 2 as they have no right to receive the same.

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.

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 no. 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.

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.

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. But the respondent no. 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.

Aggrieved by the said illegal action of the respondent no. 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.

Subsequently the petitioner no. 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.

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 of the subsequent suit no. 229 of 2007 which is a partition suit pending in the Revenue court. An objection was filed by the contesting respondents inter alia on the ground that suit no. 189 of 2002 is pending earlier in time and suit for partition has been filed subsequently in the year 2007, therefore, the earlier suit cannot be stayed under the provisions of Section 10 of CPC. The trial court vide order dated 11.5.2012 rejected the application of the petitioner on the ground that the first suit of the plaintiff is for the declaration that they are only entitled for compensation whereas the subsequent suit is a partition suit wherein several other persons are defendants. The court also found that the relief of both the suits are entirely different. Accordingly, the application of the petitioner was rejected.

Dissatisfied with the said order the petitioner/plaintiff preferred a civil revision before the learned District Judge. The learned District Judge upheld the order of the learned trial court vide impugned order dated 29th September, 2012 . The learned District Judge took the view that the matter in issue are not same in both the cases and the parties are also not similar in both the cases, therefore the ingredients of Section 10 CPC are not attracted.

A counter affidavit has been filed on behalf of the contesting respondents in the present writ petition, wherein it has been denied that the suit no. 144 of 1999 of the petitioner was decreed, in fact it was partly decreed and the will was not declared void. The appeal against the said suit filed by the petitioners was dismissed on 14.3.2009 by the Additional District Judge, Fatehpur. A further stand has been taken that the second suit is for partition whereas the first suit is for declaration that the petitioner was the exclusive owner of the said plot and accordingly entitled for compensation. Therefore, both the suit are different in nature and had no dependency. One is pending in the civil court and the other is pending in the court of Sub. Divisional magistrate and the jurisdiction of the courts are also different. The relief claimed in both the suits are different one is is declaratory and other is for partition in the revenue court. The arrays of parties are also different hence Application under section 10 CPC is not maintainable.

I have heard learned counsel for the respective parties and perused the record. I find it helpful to extract Section 10 of Code of Civil Procedure, 1908:-

"10.Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between 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 in (India) having jurisdiction to grant the relief claimed, or in any Court beyond the limits of (India) established or continued by (the Central Government) and having the jurisdiction, or before (the Supreme Court)."

From perusal of Section 10 CPC it brings out that there are four essential conditions for invoking the provisions of Section 10 CPC. When the issue in both the suits are directly and substantially same the court where the first suit is filed is also have jurisdiction to grant the relief claimed in the subsequent suit. The parties in both the suits are same. The subject matter of the subsequent suit must be same to the previously instituted suit.

The Supreme Court has explained the scope of Section 10 CPC in Manohar Lal Chopra v. Seth Hiralal , 1962 Supp (1) SCR 450. It held that the provisions of Section 10 CPC are clear definite and mandatory. It was held that the subsequent suit is prohibited from proceedings of the trial. The Court held as under :-

"39. The suit at Indore which had been instituted later, could be stayed in view of Section 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified. The provisions of Section 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. It does not appear correct to say, as has been said in Ram Bahadur v. Devidayal Ltd. that the legislature did not contemplate the provisions of Section 10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of Section 35-A indicate that the legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for compensatory costs. The legislature could have therefore provided for the non-application of the provisions of Section 10 in those circumstances, but it did not. Further, Section 22 of the Code provides for the transfer of a suit to another court when a suit which could be instituted in any one of two or more courts is instituted in one of such courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is clear, therefore, that the legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in that other Court."

The same view was taken by the Supreme Court in the case of British Indian Corpn. Ltd. v. Rashtraco Freight Carriers, (1996) 4 SCC 748, at page 549 , held that:-

" Section 10 of CPC envisages that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or b etween 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 in India having jurisdiction to grant the relieved claimed."

Recently the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256, at page 260 had occasion to deal with the scope of Section 10 CPC. Again the Court observed as under:-

"8. The 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. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical."

The principle which can be discerend in afore mentioned judgments are (i) when there is a previously suit between same parties; (ii) the matter in issue is directly and substantially is same; (iii) where suit is pending between same parties and (iv) the previously insituted suit alone should be proceeded.

This Court and some other High Courts have also taken same view. Reference may be made to some of the decisions:- Ramrichpal Singh v. Dayanand Sarup minor through Bhagwat Sarup reported AIR 1955 All. 309 (FB); M/s Anand Silk Store v. M/s Shree Ram Silk Mfg. Co. And others reported AIR 1976 Delhi 60 ; Banshidhar Naik and others v. Laxmiprasad Patnaik reported AIR 1966 Orissa 53; N. Dutta v. M/s Jardin Victor Limited reported AIR 1984 Patna 7 ; Bijendra Kumar and others v. Basant Kumar reported AIR 1994 All. 81; A.C.Naha Roy v. National Coal Development Corporation Ltd. And others reported AIR 1973 Madhya Pradesh 14; and Ratan Singh v. Musaddi Lal and others reported AIR 1972 All. 473.

In the present case the petitioner has sought stay in her earlier suit on the ground that it is dependent of the subsequent suit. A perusal of plaint of the earlier suit would indicate that it was in respect of compensation for the acquition of a plot. In the subsequent suit several persons have been impleaded as a defendant who are not party in the earlier suit. Moreover , the issue in the subsequent suit is for the partition of the entire property. The subsequent suit is in the Revenue court.

As laid down in the above mentioned judgments of the Supreme Court one of the test is as to whether final decision of earlier suit would operate as res judicata on subsequent suit.

In the case in hand the pleadings and relief of earlier suit are in respect of entitlement of compensation that will not affect the proceedings of subsequent suit. Moreover, petitioner is not seeking stay of the proceedings of subsequent suit but earlier suit which is beyond the scope of Section 10 CPC.

Consequently, I find that the impunged orders passed by the courts below do not warrant any interference under Article 226 of the Constitution.

The writ petition lacks merit. Accordingly, it is dismissed.

No order as to costs.

Order Date :- 28.10.2013

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