Smt. Vandna Singh & Ors. vs Addl.District Judge,Court ...
2021 Latest Caselaw 11449 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R,
 

 
Court No. - 17
 

 
Case :- MISC. SINGLE No. - 23074 of 2021
 

 
Petitioner :- Smt. Vandna Singh & Ors.
 
Respondent :- Addl.District Judge,Court No.1,Faizabad & Ors.
 
Counsel for Petitioner :- Mohd. Ali,Kunwar Bahadur Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Saurabh Lavania,J.

Heard Mohd. Ali, learned counsel for the petitioners, learned Standing Counsel appearing on behalf of respondent No.3 and Sri Saurabh Tripathi, learned counsel appearing on behalf of respondent No.4.

By means of present petition, a challenge has been made to the judgment and order dated 24.08.2021 passed by the Additional District Judge, Court No. 1, Faizabad in Misc. Civil Appeal No. 56 of 2018 (Smt. Vandana Singh & Others Vs. Smt. Kokila Singh & Others) which was filed against the judgment and order dated 09.10.2018 passed by the Additional Civil Judge, (Senior Division)/F.T.C., Faizabad in M.N.R. No.82 of 2014 (Smt. Kokila vs. State of U.P.). A challenge has also been made to the order dated 09.10.2018 which was assailed in the Appeal No. 56 of 2018.

The prayer No. (ii) is consequential to main prayer sought in the petition, which on reproduction, reads as under:-

"to issue an order or direction for setting aside the judgment and order dated 24.08.2021, passed by the Additional District Judge, Court No.1, Faizabad, in Misc. Civil Appeal No. 56 of 2018; Smt. Vandna Singh and others Vs. Smt. Kokila Singh, together with the order dated 09.10.2018, passed by the Additional Civil Judge, (Senior Division)/F.T.C., Faizabad, in M.N.R. No. 82 of 2014; Smt. Kokila Vs. State and others, to the extent so far as it relates to grant of 1/5th share and issuance of Succession Certificate to that effect in favour of Smt.Kokila Singh, the opposite party No. 4, pertaining to Bank deposit amount of the deceased Ashwani Kumar Singh, as contained in Annexure Nos.1 and 2 to this petition."

Assailing the orders, above mentioned, learned counsel for the petitioners submitted that Ashwani Kumar Singh, husband of petitioner No. 1 and father of petitioner Nos. 2 to 4 was maintaining his two accounts i.e. (i) Bank Account No. 200156 (Old) [New Account No. 56640100000520] of Faizabad Kshetriya Gramin Bank, Branch Zila Panchayat, Faizabad and (ii) Bank Account No. 01090051775 (Old) [New Account No. 10961469703] of State Bank of India, Faizabad. On 25.10.2006, the Ashwani Kumar Singh was murdered. Thereafter, a Misc. Case No. 422 of 2006 (Vandna Singh Vs. State), under Section 372 of Indian Succession Act, 1925 (in short "Act of 1925") was instituted by the petitioner(s). In this case, opposite No. 4 appeared and filed an objection. Subsequently, opposite party No.4-Smt. Kokila, mother of the deceased-Ashwani Kumar Singh, filed another case under Section 372 of Act of 1925 registered as M.N.R. No. 82 of 2014 (Smt. Kokila Vs. State and others) with regard to same Bank Accounts.

It is submitted that the case of the petitioners was dismissed for want of prosecution vide order dated 16.07.2015 and on coming to know about the said order, an application for restoration was preferred by the petitioners on 29.07.2015. On query being put, learned counsel for the petitioners submitted that the case has not yet been restored to its original number and the next date fixed is 21.01.2022.

He submitted that during pendency of the application for restoration, Trial Court proceeded with the case i.e. M.N.R. Case No. 82 of 2014 and taking note of the fact that application for restoration of Misc. Case No. 422 of 2006 is pending, petitioners preferred an application under Section 10 of C.P.C. for staying the proceedings of the suit. However, the Trial Court without taking note of the facts pleaded in the application preferred by the petitioners under Section 10 C.P.C. as also the law on the issue proceeded with the matter and passed final order dated 09.10.2018.

He submitted that the Trial Court was under obligation to stay the proceedings of the case as the findings recorded by it would apply as res judicata in subsequent suits including the case filed by the petitioners, under Section 372 of the Act of 1925, in which restoration application is pending and the next date fixed therein is 21.01.2022.

In addition, it is stated that the findings recorded by the Trial Court vide order dated 09.10.2018 would also affect the decision of the suit filed by the father of the deceased in Regular Suit No. 193 of 2007 (Narendra Bahadur Singh & Others Vs. Executive Engineer, Provincial, Division-2, P.W.D. Faizabad and Others).

He submitted that after the order dated 09.10.2018, petitioner(s) preferred an appeal i.e. Misc. Civil Appeal No. 56 of 2018. However, the Appellate Court, without taking note of spirit of Section 10 of C.P.C., dismissed the appeal vide judgment and order dated 24.08.2021, whereby confirmed the order dated 09.10.2018 of Trial Court.

As such, the judgment and order dated 09.10.2018 of the Trial Court as also the judgment and order of Appellate Court dated 24.08.2021 are liable to be interfered with.

He, in support of his case placed reliance upon the judgment of Hon'ble Apex Court passed in the case of Pawan Kumar Gupta vs. Ruchi Ramnag Dey, reported in 1999 (4) SCC 243, relevant paragraph on reproduction reads as under:-

"16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contested issues."

Considered the submissions advanced by the learned counsel for the petitioner as also learned Additional C.S.C., appearing for opposite party No. 3 and Sri Saurabh Tripathi, learned counsel for the opposite party No.4.

From the aforesaid, it is apparent that present petition relates to the succession of properties of the deceased particularly movable properties.

Admittedly, the deceased was Male and was Hindu, as such, undisputedly, Hindu Succession Act, 1956 (in short "Act of 1956") would apply. It has not been stated in this petition that the deceased prior to his death had executed the will deed. Meaning thereby the case of the petitioners is not based on will. Thus, admittedly, deceased expired intestate. As such, property of the deceased in this case would be devolved in the manner prescribed under Section 8 of the Act of 1956, which provides General Rules of Succession in the case of males, read with the Scheduled appended to the Act of 1956. Relevant provisions are quoted below for ready reference:-

"8. General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--

(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;

(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

THE SCHEDULE

[Section 8]

HEIRS IN CLASS I AND CLASS II

CLASS I

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a predeceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a predeceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre-deceased son.

CLASS II

I. Father.

II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.

III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's daughter's son, (4) daughter's daughter's daughter.

IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.

V. Father's father; father's mother.

VI.. Father's widow; brother's widow.

VII. Father's brother; father's sister.

VIII. Mother's father; mother's mother.

IX. Mother's brother; mother's sister.

Explanation : In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood."

In the instant case, admittedly, the deceased-Ashwani Kumar Singh expired intestate on 25.10.2006 leaving behind his Wife-Vandana Singh, minor daughters-Km. Anchal Singh and Km. Khushi, minor son-Abhay Singh, mother-Smt. Kokila and father-Sri Narendra Bahadur Singh.

As per the provisions of Act of 1956, indicated herein above, the wife, daughter(s), son, and mother, named above, of the deceased-Ashwani Kumar Singh being legal heirs specified under Class-I of Schedule, are entitled to share in the property of the deceased.

In the instant case, for the reasons aforesaid, each legal heir, specified under Class-I of Schedule read with Section 8 of the Act of 1956, is entitled to 1/5th share in the property of the deceased-Ashwani Kumar Singh. Needless to say that father of the deceased being legal heir specified under Class-II, as per Act of 1956, would not inherit the property of the deceased.

The trial Court in the judgment and order dated 09.10.2018 has recorded a finding that the mother of the deceased is entitled only upto 1/5th share and thereafter passed the order accordingly for grant of Succession Certificate. Moreover, as per this order, each petitioner is also entitled to 1/5 share in property of the deceased.

On the issue of share, when a query has been put to the learned counsel for the petitioners, he could not place any law before this Court in which petitioners would be entitled for more than the share what has been expressed by the Trial Court in the judgment and order dated 09.10.2018.

Thus, in view of aforesaid, this Court feels that no prejudice would be caused to the petitioner on the basis of findings given by the Trial Court and affirmed by the Appellate Court.

Needless to say that the preliminary source of legal provisions of Section(s) 10 and 11 of C.P.C. is based on the concepts of Res-Subjudice and Res-Judicata.

'Res' means every object of right that proves the subject matter in a particular case. In Latin, the expression 'Sub-Judice' means "Under a judge" or in other words, a matter "under consideration". It means a cause that is under trial or pending before a Court or Judge.

The doctrine of Res-Judicata prohibits the second trial of the same dispute between the same parties. This doctrine prevents the trial of a suit or issue if by a decision in earlier suit between the same parties or their successors, the issue(s) are settled.

This case relates to Section 10 of C.P.C. as such principles of Res Sub-judice would apply. The expression 'Res Sub-Judice' is Latin maxim which means "under judgment". The rule of the Sub-Judice is based on the public policy which prohibits the plaintiff to file two parallel cases on the same subject matter and restricts the chances of having two contradictory judgments by the two courts. The purpose of the doctrine of Res Sub-Judice is to prevent a multiplicity of the proceedings and to refrain two conflicting decisions. The doctrine bars the parallel trial of the suit where the matter is pending to adjudicate in the former suit but it does not restrict in filing the subsequent suit. The primary aim of this doctrine is to prohibit the courts of concurrent jurisdiction from simultaneously entertaining two parallel litigations. In case of two or more cases, pending between the same parties in the same subject matter, the competent court has power to stay the proceedings.

Considering the issue involved in this petition, it would be appropriate to refer Section 10 of C.P.C., the same reads as under:-

"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 have jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."

Section 10 of C.P.C. states that no court will initiate the trial of any suit if the issues are directly or substantially related to the previously instituted suit between the same parties or parties litigating on behalf of them under the same title and the matter is pending before the court having the competent jurisdiction in the territory of India or any court beyond the limits of India established by central governments having the same jurisdiction or before supreme court. If parallel suits come before the competent court, section 10 gives the power to put a stay on the proceedings in another court. Section 10 prohibits the trial of parallel litigation where the same cause of action arises between the same parties on the same subject matter. Section 10 bars the two parallel litigation between the same parties on the same cause of action. The basic reasoning behind this provision is to prevent wastage of courts resource, protect the right of the litigant, reduce the burden on courts and avoid two contradictory decision. This provision was inserted in C.P.C. to meet the end of the justice and prevent abuse of the court.

It appears from the aforesaid that for application of Section 10 of C.P.C. the following are necessary condition:-

(a) There should be two suits.

	(b) The suits must be between the same parties or their 	       successors.
 
	(c) The matter in the issue in the later suit must be directly 	      and substantially the same as in the previous suits.  
 
	(d) Both the suits should be pending before the court of law.
 
	(e) The parties must be litigating under the same title in both 	      the suits.
 
	From the aforesaid, the objective behind Section 10 in C.P.C. can be deduced as under:-
 
		(i) To prevent parallel litigation between the same parties 		     on the same issue/subject matter.
 
		(ii) To reduce the burden on the courts as also to prevent 		      wastage of time of the Courts.
 
		(iii) To avoid contradictory decisions on the same     		       issue/subject matter.
 
		(iv) To protect the rights of other party.
 

In earlier part of this judgment, this Court has already held that the findings, regarding share in the property of the deceased, recorded by the Trial Court are just and proper and being so no prejudice would be caused to the petitioners. As such, to the view of this Court, the decision in the case filed by the petitioners under Section 372 of the Act of 1925, which was not pending on 09.10.2018 (the date on which the case filed by mother of the deceased under Section 372 of the Act of 1925 was allowed) as the same was dismissed for want of prosecution on 16.07.2015 and has yet not been restored to its original number, would not be contradictory.

After considering the principle of Res Sub-judice and Section 10 of C.P.C., this Court, in earlier part of this judgment, has observed regarding requirement of necessary condition for application of Section 10 of C.P.C. as also its objective.

In this case, admittedly, the Misc. Case No. 422 of 2016 filed by the petitioners was not pending as the same was dismissed for want of prosecution on 16.07.2015 and was not restored at the time of passing the final order dated 09.10.2018 in M.N.R. No. 82 of 2014, filed by the mother of the deceased.

From the aforesaid, it is crystal clear that one essential/ necessary requirement for applying Section 10 of C.P.C. was not present at the time of passing the impugned order dated 09.10.2018 which is to the effect that "Both the suits should be pending before the Court of Law". As such, this Court is of the view that the Trial Court rightly decided the subsequent case.

Upon due consideration of aforesaid particularly the findings recorded by this Court on the issue of contradictory decision and missing of one essential condition for applying the provisions of Section 10 of C.P.C., this Court is of the view that no interference in impugned orders is required in exercise of powers under Article 227 of the Constitution of India.

Accordingly, the writ petition is dismissed. No order as to costs.

Order Date :- 9.12.2021

Vinay/-