Vanukuru Koteswara Rao vs Satyavolu Madhukar
2021 Latest Caselaw 5393 AP

     THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

           CIVIL REVISION PETITON No.59 of 2021

ORDER:-

      A few facts are necessary for a proper consideration of

the issue raised in this Civil Revision Petition. The 2nd

respondent herein had purchased the property under dispute

from one of her brothers under a Registered Deed of Sale

dated 13.10.2005. Thereafter, she executed a Registered Deed

of Gift dated 16.06.2009 in favour of her son, who is the 1st

respondent herein.

2. The petitioner herein filed O.S.No.179 of 2009

against the 2nd respondent and subsequently added the 1st

respondent. This suit was filed for specific performance of a

possessory agreement of sale dated 13.10.2005 and

alternatively, for refund of the consideration paid under the

agreement of sale along with interest. The 1st respondent filed

O.S.No.305 of 2009 before the Principal Junior Civil Judge,

Gudivada which was transferred to the Principal Senior Civil

Judge, Gudivada and renumbered as O.S.No.226 of 2010.

This suit was filed against the petitioner herein, for the relief

of permanent injunction, restraining the petitioner and

persons claiming through him, from interfering with the

possession and enjoyment of the 1st respondent over the

property under dispute. Both the suits were tried together

and both the suits were dismissed by a Judgment dated

28.04.2014. In this Judgment, the trial Judge disbelieved the

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possessory agreement of sale dated 13.10.2005 and

subsequent payments and dismissed the suit. Similarly the

trial Judge came to the view that the petitioner was in

possession of the property in dispute and 1st respondent was

not in possession of the property under dispute, and

dismissed the suit, filed for injunction. Thereafter, the

petitioner herein filed A.S.No.83 of 2015 against the Judgment

and Decree in O.S.No.179 of 2009 before the XI Additional

District Judge, Gudivada.

3. The respondents herein have filed a fresh suit,

O.S.No.318 of 2015 before the Principal Senior Civil Judge,

Gudivada, against the petitioner, for declaration of the title

over the property and delivery of the possession of the same

and for mesne profits for the years 2012-13 to 2014-15 and

for future profits. This suit was filed on the ground that the

petitioner had forcibly occupied the suit schedule property

during the pendency of O.S.No.179 of 2009 and O.S.No.226 of

2010.

4. At present, both O.S.No.318 of 2015 and

A.S.No.83 of 2015 are pending before the courts. The

petitioner had moved I.A.No.200 of 2020 in O.S.No.318 of

2015 under Section 10 of C.P.C., on the ground that the

subject matter of the suit is one and the same, and that the

trial Court should stay all further proceedings in O.S.No.318

of 2015 till the disposal of A.S.No.83 of 2015 on the file of XI

additional District Judge, Gudivada. This application was

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dismissed by the trial Court, by an order dated 25.11.2020

holding that the facts of the case do not make out the

requirements of Section 10 of C.P.C.

5. Sri Narasimha Rao Gudiseva, learned counsel for

the petitioner would submit that the property in dispute, in

both the appeal and the suit is one and the same and the

parties to the proceedings are also one and the same. He

contends that since the reliefs sought in both these

proceedings are at cross purposes, it would have to be held

that the provisions of Section 10 of C.P.C would be applicable

and the proceedings in O.S.No.318 of 2015 should be stayed

as these proceedings are subsequent proceedings.

6. Sri P.S.P. Suresh Kumar, learned counsel for the

respondents would submit that the cause of action for these

suits are different and the findings in one proceeding do not in

any manner affect findings in the second proceeding and as

such, the provisions of Section 10 of C.P.C. would not be

applicable and there is no justification for interfering with the

order of the trial Court.

7. Both sides have relied upon various Judgments

which are given below:

1) British India Corporation Limited Vs.Rashtraco Freight Carrriers.1

2) Madala Siva Kasirathna Prameela Rani and another vs. Ambati Janardhana Rao and Others.2

3) M.Venkata Ratna Reddu vs. Mohammed Reddy and others.3

(1996) 4 SCC 748

2007(1) CCC 153 (AP)

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4) Aspi Jal and another vs. Khushroo Rustom Dadyburjor4

5) Ambica Sahu vs. Sumitra Sahu.5

6) Dr.M.Srinivas Rao vs. Madhura Centre/Tiffin, Hyderabad and another.6

7) Marishetty Pedda Gangaram vs. Chukka Hanumandlu and another7.

These Judgments essentially set out the conditions

under which the provisions of Section 10 of C.P.C. can be

invoked.

8. These Judgments hold that that Section 10 of

C.P.C. would be applicable only where the matters in issue in

both the proceedings are one and the same and both the

proceedings arise on the basis of the title claimed by each of

the parties.

9. This principle has been explained by the Hon'ble

Supreme Court in Aspi Jal and another vs. Khushroo

Rustom Dadyburjor, the relevant extract of this Judgment,

which has also been extracted in the Judgment of the trial

Court, is as follows:

"In the present case, the parties in all the three suits are one and the same and the Court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether "the matter in issue is also directly and substantially in issue in previously instituted suits". The key words in section 10 are "the matter in issue is directly and substantially in issue in the previously instituted suit". The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the

2004(3)ALT 559

2013(4) ALD 62 (SC)

AIR 1990 Orissa 127

2014 (2) ALD 160

2017 (6) ALD page 1

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subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit".

10. In the present case we are concerned with the

proceedings in O.S.No.179 of 2009 which is being continued

by way of A.S.No.83 of 2015 on one hand, and the

proceedings in O.S.No.318 of 2015 on the other hand.

11. The case of the petitioner in O.S.No.179 of

2009/A.S.No.83 of 2015 is that the 2nd respondent had

entered into an agreement of sale with him on 13.10.2007,

under which he has been put in possession, and he is seeking

specific performance of the agreement of sale. The case of the

respondents in O.S.No.318 of 2015 is that the 2nd respondent

had gifted the property to the 1st respondent in 2009 and the

petitioner had forcibly entered into possession of the property

while O.S.No.179 of 2009 and O.S.No.226 of 2010 were

pending before the trial Court earlier. The suit of the

petitioner is a suit for specific performance based on an

agreement of sale. The suit of the respondents is a suit for

recovery of possession on the basis of declaration of a title in

favour of the respondents.

12. The issue that would come up in O.S.No.179 of

2009/A.S.No.83 of 2015 is whether the petitioner has been

put in possession of the property under the possessory

agreement of sale dated 13.10.2005. The issue that would

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arise in O.S.No.315 of 2015 is whether the petitioner was put

in possession under the agreement of sale or whether the

petitioner forcibly entered into the property during the course

of the earlier suits. The finding in the earlier suit, as to who

is in possession and when the possession is said to have

taken is also an issue in O.S.No.318 of 2015. A finding in the

earlier round of litigation on the question of possession would

be binding on the respondents herein, in O.S.No.318 of 2015

also. As this would effectively amount to res judicata, it

cannot be said that the principle of Section 10 of C.P.C.

would not be applicable.

13. In the circumstances, I am of the view that the

principles of Section 10 of C.P.C. are clearly applicable in the

present case and the order of the trial Court, to that extent is

incorrect and requires to be corrected.

14. Accordingly, the Civil Revision Petition is allowed,

and all further proceedings in O.S.No.318 of 2015 pending

disposal of A.S.No.83 of 2015, are stayed. There shall be no

order as to costs.

Miscellaneous petitions, pending if any, in this Civil

Revision Petition shall stand closed.

___________________________________ JUSTICE R.RAGHUNANDAN RAO Date : 21-12-2021 RJS

RRR,J CRP.No.59 of 2021

THE HON'BLE SRI JUSTICE R.RAGHUNANDAN RAO

CIVIL REVISION PETITON No.59 of 2021

Date : 21-12-2021

RJS