Bombay High Court
Rohinton Jamshedji Mehta vs Smt. Sarubai Narayan Mulik, ... on 8 January, 2018
Bench: Dr. Shalini Phansalkar-Joshi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8397 OF 2017
Jayprakash Sitaram Goel ]
Age : Adult, Occ. Business ]
R/at : Gangotri, Salisbury Park, ]
Pune - 411 001 ] Petitioner
Versus
1 Smt.Sarubai Narayan Mulik ]
(Since deceased) ]
2 Smt.Mathurabai Arjun Magar ]
Age : 52 years, Occ. Housewife ]
R/at Magarpatta, Hadapsar, ]
Pune - 411 028 ]
3 Murlidhar Nivrutti Deokar ]
Age : 56 years, Occ.Agriculturist, ]
R/at Ramwadi, Vadgaonsheri, ]
Pune-Nagar Road, Pune - 411 014 ]
3A Mrs.Sindhu Murlidhar Devkar (Widow) ]
Age : Adult, Occ. Housewife ]
3B Maruti Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture, ]
Both R/at Geenland, Lunkad Park, ]
Viman Nagar, Pune ]
3C Chandrahas Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture ]
3D Mrs.Ranjana Chandrakant Sorte ]
(Daughter) ]
Since deceased through legal heirs ]
3D1 Pramod Chandrakant Sorte ]
Age : Adult, Occ.Agriculture ]
3D2 Miss.Chaitali Chandrakant Sorte ]
Age : Adult, Occ.Education ]
3D3 Miss.Pornima Chandrakant Sorte ]
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Age : Adult, Occ.Education, ]
All R/at Post Sangamwadi, ]
Tal. Haveli, Dist. Pune ]
]
3E Mrs.Savitri Dnyaneshwar Khandave ]
(Daughter) ]
Age : Adult, Occ.Housewife, ]
R/at A/p.Nirguji Road, Lohgaon, ]
Dist.Pune ]
3F Mrs.Meera Wadekar ]
Age : Adult, Occ.Housewife, ]
R/at Srushti Apartment, 15 Number ]
Hadapsar, Tal. Haveli, Dist.Pune ]
3G Mrs.Sonali Vijay Harphale (daughter) ]
Age : Adult, Occ.Housewife, ]
R/at At post Fursingi, ]
Tal. Haveli, Dist. Pune ]
4 Satish Gajanan Mulik ]
Age : 49 yrs., Occ.Legal Practitioner, ]
R/at Survey No.8, Wadgaon Sheri, ]
Pune - 411 014 ] Respondents
WITH
WRIT PETITION NO. 8398 OF 2017
Subhash Sitaram Goel, ]
Age : Adult, Occ. Business ]
R/at : 125, Nana Peth, ]
Pune - 411 002 ] Petitioner
Versus
1 Smt.Sarubai Narayan Mulik ]
(Since deceased) ]
2 Smt.Mathurabai Arjun Magar ]
Age : 52 years, Occ. Housewife ]
R/at Magarpatta, Hadapsar, ]
Pune - 411 028 ]
3 Murlidhar Nivrutti Deokar ]
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Age : 56 years, Occ.Agriculturist, ]
R/at Ramwadi, Vadgaonsheri, ]
Pune-Nagar Road, Pune - 411 014 ]
3A Mrs.Sindhu Murlidhar Devkar (Widow) ]
Age : Adult, Occ. Housewife ]
3B Maruti Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture, ]
Both R/at Geenland, Lunkad Park, ]
Viman Nagar, Pune ]
3C Chandrahas Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture ]
3D Mrs.Ranjana Chandrakant Sorte ]
(Daughter) ]
Since deceased through legal heirs ]
3D1 Pramod Chandrakant Sorte ]
Age : Adult, Occ.Agriculture ]
3D2 Miss.Chaitali Chandrakant Sorte ]
Age : Adult, Occ.Education ]
3D3 Miss.Pornima Chandrakant Sorte ]
Age : Adult, Occ.Education, ]
All R/at Post Sangamwadi, ]
Tal. Haveli, Dist. Pune ]
3E Mrs.Savitri Dnyaneshwar Khandave ]
(Daughter) ]
Age : Adult, Occ.Housewife, ]
R/at A/p.Nirguji Road, Lohgaon, ]
Dist.Pune ]
3F Mrs.Meera Wadekar ]
Age : Adult, Occ.Housewife, ]
R/at Srushti Apartment, 15 Number ]
Hadapsar, Tal. Haveli, Dist.Pune ]
3G Mrs.Sonali Vijay Harphale (daughter) ]
Age : Adult, Occ.Housewife, ]
R/at At post Fursingi, ]
Tal. Haveli, Dist. Pune ]
4 Satish Gajanan Mulik ]
Age : 49 yrs., Occ.Legal Practitioner, ]
R/at Survey No.8, Wadgaon Sheri, ]
Pune - 411 014 ] Respondents
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WITH
WRIT PETITION NO. 8739 OF 2017
Summer Palace Land Developers ]
Private Limited, ]
A company limited by shares ]
incorporated under provisions of ]
Companies Act, 1956 having its ]
registered office at : A-5, Everest, ]
Tardeo Everest Premises Co-operative ]
Society, Tardeo, Mumbai - 400 034, By ]
the hands of its Director/Authorized ]
Signatory: Shri Ramesh Bhatia ] Petitioner
Versus
1 Smt.Sarubai Narayan Mulik ]
(Since deceased) ]
2 Smt.Mathurabai Arjun Magar ]
Age : 52 years, Occ. Housewife ]
R/at Magarpatta, Hadapsar, ]
Pune - 411 028 ]
3 Murlidhar Nivrutti Deokar ]
Age : 56 years, Occ.Agriculturist, ]
R/at Ramwadi, Vadgaonsheri, ]
Pune-Nagar Road, Pune - 411 014 ]
3A Mrs.Sindhu Murlidhar Devkar (Widow) ]
Age : Adult, Occ. Housewife ]
3B Maruti Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture, ]
Both R/at Geenland, Lunkad Park, ]
Viman Nagar, Pune ]
3C Chandrahas Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture ]
3D Mrs.Ranjana Chandrakant Sorte ]
(Daughter) ]
Since deceased through legal heirs ]
3D1 Pramod Chandrakant Sorte ]
Age : Adult, Occ.Agriculture ]
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3D2 Miss.Chaitali Chandrakant Sorte ]
Age : Adult, Occ.Education ]
3D3 Miss.Pornima Chandrakant Sorte ]
Age : Adult, Occ.Education, ]
All R/at Post Sangamwadi, ]
Tal. Haveli, Dist. Pune ]
3E Mrs.Savitri Dnyaneshwar Khandave ]
(Daughter) ]
Age : Adult, Occ.Housewife, ]
R/at A/p.Nirguji Road, Lohgaon, ]
Dist.Pune ]
3F Mrs.Meera Wadekar ]
Age : Adult, Occ.Housewife, ]
R/at Srushti Apartment, 15 Number ]
Hadapsar, Tal. Haveli, Dist.Pune ]
3G Mrs.Sonali Vijay Harphale (daughter) ]
Age : Adult, Occ.Housewife, ]
R/at At post Fursingi, ]
Tal. Haveli, Dist. Pune ]
4 Satish Gajanan Mulik ]
Age : 49 yrs., Occ.Legal Practitioner, ]
R/at Survey No.8, Wadgaon Sheri, ]
Pune - 411 014 ] Respondents
WITH
WRIT PETITION NO. 8740 OF 2017
Poonam Aundh Land Developers ]
Private Limited, ]
A company limited by shares ]
incorporated under provisions of ]
Companies Act, 1956 having its ]
registered office at : A-5, Everest, ]
Tardeo Everest Premises Co-operative ]
Society, Tardeo, Mumbai - 400 034, By ]
the hands of its Director/Authorized ]
Signatory: Shri Ramesh Bhatia ] Petitioner
Versus
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1 Smt.Sarubai Narayan Mulik ]
(Since deceased) ]
2 Smt.Mathurabai Arjun Magar ]
Age : 52 years, Occ. Housewife ]
R/at Magarpatta, Hadapsar, ]
Pune - 411 028 ]
3 Murlidhar Nivrutti Deokar ]
Age : 56 years, Occ.Agriculturist, ]
R/at Ramwadi, Vadgaonsheri, ]
Pune-Nagar Road, Pune - 411 014 ]
3A Mrs.Sindhu Murlidhar Devkar (Widow) ]
Age : Adult, Occ. Housewife ]
3B Maruti Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture, ]
Both R/at Geenland, Lunkad Park, ]
Viman Nagar, Pune ]
3C Chandrahas Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture ]
3D Mrs.Ranjana Chandrakant Sorte ]
(Daughter) ]
Since deceased through legal heirs ]
3D1 Pramod Chandrakant Sorte ]
Age : Adult, Occ.Agriculture ]
3D2 Miss.Chaitali Chandrakant Sorte ]
Age : Adult, Occ.Education ]
3D3 Miss.Pornima Chandrakant Sorte ]
Age : Adult, Occ.Education, ]
All R/at Post Sangamwadi, ]
Tal. Haveli, Dist. Pune ]
3E Mrs.Savitri Dnyaneshwar Khandave ]
(Daughter) ]
Age : Adult, Occ.Housewife, ]
R/at A/p.Nirguji Road, Lohgaon, ]
Dist.Pune ]
3F Mrs.Meera Wadekar ]
Age : Adult, Occ.Housewife, ]
R/at Srushti Apartment, 15 Number ]
Hadapsar, Tal. Haveli, Dist.Pune ]
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3G Mrs.Sonali Vijay Harphale (daughter) ]
Age : Adult, Occ.Housewife, ]
R/at At post Fursingi, ]
Tal. Haveli, Dist. Pune ]
4 Satish Gajanan Mulik ]
Age : 49 yrs., Occ.Legal Practitioner, ]
R/at Survey No.8, Wadgaon Sheri, ]
Pune - 411 014 ] Respondents
WITH
WRIT PETITION NO. 8741 OF 2017
Rohinton Jamshedji Mehta ]
Age : Adult, Occ.Business, ]
R/at : 212, San-Mahu Commercial ]
Complex, 5, Bund Garden Road, ]
Pune - 411 037 ] Petitioner
Versus
1 Smt.Sarubai Narayan Mulik ]
(Since deceased) ]
2 Smt.Mathurabai Arjun Magar ]
Age : 52 years, Occ. Housewife ]
R/at Magarpatta, Hadapsar, ]
Pune - 411 028 ]
3 Murlidhar Nivrutti Deokar ]
Age : 56 years, Occ.Agriculturist, ]
R/at Ramwadi, Vadgaonsheri, ]
Pune-Nagar Road, Pune - 411 014 ]
3A Mrs.Sindhu Murlidhar Devkar (Widow) ]
Age : Adult, Occ. Housewife ]
3B Maruti Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture, ]
Both R/at Geenland, Lunkad Park, ]
Viman Nagar, Pune ]
3C Chandrahas Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture ]
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3D Mrs.Ranjana Chandrakant Sorte ]
(Daughter) ]
Since deceased through legal heirs ]
3D1 Pramod Chandrakant Sorte ]
Age : Adult, Occ.Agriculture ]
3D2 Miss.Chaitali Chandrakant Sorte ]
Age : Adult, Occ.Education ]
3D3 Miss.Pornima Chandrakant Sorte ]
Age : Adult, Occ.Education, ]
All R/at Post Sangamwadi, ]
Tal. Haveli, Dist. Pune ]
3E Mrs.Savitri Dnyaneshwar Khandave ]
(Daughter) ]
Age : Adult, Occ.Housewife, ]
R/at A/p.Nirguji Road, Lohgaon, ]
Dist.Pune ]
3F Mrs.Meera Wadekar ]
Age : Adult, Occ.Housewife, ]
R/at Srushti Apartment, 15 Number ]
Hadapsar, Tal. Haveli, Dist.Pune ]
3G Mrs.Sonali Vijay Harphale (daughter) ]
Age : Adult, Occ.Housewife, ]
R/at At post Fursingi, ]
Tal. Haveli, Dist. Pune ]
4 Satish Gajanan Mulik ]
Age : 49 yrs., Occ.Legal Practitioner, ]
R/at Survey No.8, Wadgaon Sheri, ]
Pune - 411 014 ] Respondents
WITH
WRIT PETITION NO. 8399 OF 2017
Nitin Dwarkadas Nyati, ]
Age : Adult, Occ. Business, ]
R/at : 10/7, Anand Society, ]
Off Shankarsheth Road, ]
Pune - 411 037 ] Petitioner
Versus
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1 Smt.Sarubai Narayan Mulik ]
(Since deceased) ]
2 Smt.Mathurabai Arjun Magar ]
Age : 52 years, Occ. Housewife ]
R/at Magarpatta, Hadapsar, ]
Pune - 411 028 ]
3 Murlidhar Nivrutti Deokar ]
Age : 56 years, Occ.Agriculturist, ]
R/at Ramwadi, Vadgaonsheri, ]
Pune-Nagar Road, Pune - 411 014 ]
3A Mrs.Sindhu Murlidhar Devkar (Widow) ]
Age : Adult, Occ. Housewife ]
3B Maruti Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture, ]
Both R/at Geenland, Lunkad Park, ]
Viman Nagar, Pune ]
3C Chandrahas Murlidhar Devkar (Son) ]
Age : Adult, Occ.Agriculture ]
3D Mrs.Ranjana Chandrakant Sorte ]
(Daughter) ]
Since deceased through legal heirs ]
3D1 Pramod Chandrakant Sorte ]
Age : Adult, Occ.Agriculture ]
3D2 Miss.Chaitali Chandrakant Sorte ]
Age : Adult, Occ.Education ]
3D3 Miss.Pornima Chandrakant Sorte ]
Age : Adult, Occ.Education, ]
All R/at Post Sangamwadi, ]
Tal. Haveli, Dist. Pune ]
3E Mrs.Savitri Dnyaneshwar Khandave ]
(Daughter) ]
Age : Adult, Occ.Housewife, ]
R/at A/p.Nirguji Road, Lohgaon, ]
Dist.Pune ]
3F Mrs.Meera Wadekar ]
Age : Adult, Occ.Housewife, ]
R/at Srushti Apartment, 15 Number ]
Hadapsar, Tal. Haveli, Dist.Pune ]
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3G Mrs.Sonali Vijay Harphale (daughter) ]
Age : Adult, Occ.Housewife, ]
R/at At post Fursingi, ]
Tal. Haveli, Dist. Pune ]
4 Satish Gajanan Mulik ]
Age : 49 yrs., Occ.Legal Practitioner, ]
R/at Survey No.8, Wadgaon Sheri, ]
Pune - 411 014 ] Respondents
• Mr.Vishwajit Sawant a/w. Mr.Purushottam G. Chavan for the
Petitioners.
• Mr.S.M. Gorwadkar, Senior Counsel i/b. Mr.Niranjan A. Mogre
for Respondent No.2.
CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.
DATE : 8 th JANUARY, 2018.
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith. Heard finally with
the consent of learned counsel for both the parties.
2] By these Writ Petitions filed under Article 227 of the
Constitution of India, the Petitioners are challenging the order dated
29th April, 2017 passed by 8th Joint Civil Judge Senior Division, Pune,
thereby rejecting the Petitioners' applications filed under Section 10
read with Section 151 of the Civil Procedure Code, for stay of their
respective suits, filed against the Respondents for specific
performance of contract.
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3] It is submitted by learned counsel for the Petitioners that
the present suits are filed by the Petitioners for specific performance
of the agreement dated 26th December, 1994, executed by Respondent
No.1 in favour of the Petitioners and for permanent injunction in
respect of part and parcel of the land admeasuring 20,200 sq. meters
bearing Survey No.16/2 situated at Village Vadgaonsheri, Taluka
Haveli, District Pune. The Petitioners has paid more than 97% of the
consideration amount and they are in possession of the suit property.
4] However, in the interregnum, one Mr.Kanhaiyalal Talera
had also filed a Special Civil Suit No.1792 of 1994 against Respondent
No.1 for specific performance of Visar Pavti, alleged to be executed by
Respondent No.1 on 28th March, 1979 in his favour relating to the
entire property bearing Survey No.1612, including the plots of the
Petitioners. In that suit, the Petitioners had filed an application for
their impleadment. However, the said application came to be
dismissed.
5] The trial Court has also dismissed the said suit on 16 th
November, 2007. Mr.Talera has, thereafter, preferred First Appeal
No.2860 of 2007 before this Court. This Court has allowed it on 29 th
October, 2013 and granted the decree of specific performance of
contract in favour of Mr.Talera. Now, the said matter is pending before
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the Hon'ble Supreme Court in the Special Leave Petition No.737 of
2014 filed by Respondent No.1 against the decree of specific
performance passed by this Court.
6] Meanwhile, the Petitioners had also preferred the Special
Leave Petition No. 1138 of 2014 in the Hon'ble Supreme Court
challenging the said decree. Now, both the Special Leave Petitions are
tagged together as per the order passed by the Hon'ble Supreme Court
on 24th January, 2014 and pending for its consideration. In Special
Leave Petition No.1138 of 2014, the application was also made by the
Petitioners to the Hon'ble Supreme Court to stay the present suits till
Special Leave Petitions are decided. The Hon'ble Supreme Court,
however, by its order dated 10th February, 2017 observed that,
"Having heard learned counsel appearing for the parties
and upon perusal of the record, we see no reasons to grant
interim stay of the own suits of the applicants, particularly
since the applicants have not yet been granted permission
to file the special leave petitions. Accordingly, these
interlocutory applications stand rejected.
However, the applicants may file applications for stay
before the trial Court in respect of their own suits pending
before it.
Needless to mention that in the event the applicants
make such applications, the trial Court may decide the
same in accordance with law"
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7] Accordingly, the Petitioners had preferred these
applications before the trial Court under Section 10 read with Section
151 of C.P.C., seeking stay to the hearing of their suits on the count
that the decree passed in the earlier suit for specific performance, filed
by Mr.Kanhaiyalal Talera against Respondent No.1, is going to have
bearing on the decision of their suits and as that decree is under
challenge before the Hon'ble Supreme Court, till the decision thereof,
the trial Court should not proceed with the hearing of these suits.
8] It is urged by learned counsel for the Petitioners that in the
written statement in paragraph No.(32A), the Defendant No.4 has also
taken a specific contention that, during lifetime of Respondent No.1,
Mr.Kanhaiyalal Talera had filed a false suit for specific performance of
the agreement and the said suit came to be decreed in the appeal and
therefore, as in respect of the same property already the decree for
specific performance is passed, trial Court may not use the discretion
in favour of the Petitioners and in that event, the Petitioners suits
should be dismissed. It is urged that if the Petitioners who are the
Plaintiffs themselves are seeking the stay to their own suits, the trial
Court should have granted such stay, instead of proceeding with the
hearing of the suits, thereby causing grave prejudice to the rights of
the Petitioners.
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9] According to learned counsel for the Petitioners, though
the trial Court has discretion as to whether to grant the relief of
specific performance of the agreement or in the alternate of refund of
earnest amount, however, that discretion will be exercised by the trial
Court in these suits, against the Petitioners, being influenced by the
fact that in respect of the same property, the decree for specific
performance of the contract is already passed in favour of Mr.Talera.
Hence according to learned counsel for the Petitioners, from the point
of propriety also, the trial Court should have stayed the hearing of the
suits.
10] It is further submitted by learned counsel for the
Petitioners that the trial Court has rejected the applications filed by
the Petitioners only on the ground that the parties to the suit are not
the same and suit transaction in the present suit and in the earlier
suit filed by Mr.Talera is also not the same. However, it is urged that,
admittedly, Respondent No.1 is a party to the present suit and also to
the earlier suit. Not only that, even the Special Leave Petitions
preferred by the Petitioners and Respondent No.1 against the earlier
decree of specific performance, granted in favour of Mr.Talera, are also
tagged together by the Hon'ble Supreme Court, thereby indicating that
controversy involved in both the suits is one and same. Hence, in
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principle, the parties and the transactions are the same. The trial
Court should have therefore kept in mind the spirit and object of
Section 10 of C.P.C. for the purpose of deciding the application. The
trial Court has, however, rejected the stay application and it has now
the result of as good as trial Court exercising its discretion in denying
the decree of specific performance of the agreement in favour of the
Petitioners. Therefore, according to learned counsel for the
Petitioners, the impugned order passed by the trial Court needs to be
quashed and set-aside as it is causing grave prejudice to the
Petitioners and it is also against the object and purpose of Section 10
of C.P.C..
11] Per contra, learned counsel for the Respondents has
supported the impugned order by submitting that, admittedly, the
present suits are filed by the Petitioners, whereas earlier suit was filed
by one Mr.Talera, therefore the parties to both the suits are definitely
different. Secondly, the subject matter of the suit transactions,
namely, the agreements of sale in both the suits are also different
ones. Hence, the issues involved in both the suits are also different.
Moreover, in the earlier suit the entire land of Survey No.16/2 was
subject matter of the suit, whereas in the present suits only part
thereof is involved. Therefore, the requisite conditions for invoking
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Section 10 of C.P.C. are not at all attracted, far remained to be
satisfied.
12] Further, it is submitted that the Petitioners are, by filing
these applications, assuming that their suits are going to be decreed. It
is submitted that, the decision of a suit for specific performance of the
agreement depends on several factors, like, readiness and willingness
of the Petitioners to perform their part of the contract; the question,
whether the agreement executed is legal, valid and in subsistence etc.
Therefore, the decision of the present suits is not only depending on
the decree passed in the earlier suit filed by Mr.Talera but on several
other factors, especially on the facts of the present suits. Hence,
according to learned counsel for the Respondents, when the
application filed by the Petitioners was not satisfying the conditions
laid down in Section 10 of the C.P.C., the trial Court has rightly refused
to stay the hearing of the suit.
13] Moreover, it is submitted that, now the hearing of the suits
is at the concluding stage. The evidence of the Plaintiff and his witness
is recorded; even the evidence of Defendant and his witness is also
concluded. The matter is at the stage of argument. Hence, according to
learned counsel for the Respondents, at this stage, there is no
propriety also in staying the hearing of the suit.
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14] Having heard learned counsel for both the parties, this
Court is of the opinion that, as the controversy involved in these
petitions revolves around the provisions of Section 10 of C.P.C., it
would be necessary to reproduce the same for ready reference, as
follows :
"Section 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
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."
15] Thus, for applicability of Section 10 of C.P.C., following
conditions must be fulfilled:
i) Parties to both the suits are same and are litigating under
the same title.
ii) The matter in both these suits is directly and substantially
the same.
iii) The previously instituted suit must be pending.
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iv) The Court, in which the previously instituted suit is
pending has jurisdiction to grant the relief claimed in the
subsequent suit.
16] As held by the Hon'ble Supreme Court, in the case of,
National Institute of Mental Health and Neuro Sciences Vs. C.
Parmeshwara, AIR 2005 SCC 242,
"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
osk 19-wp-8397-2017.odt
substantially in issue" are used in contra-distinction 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 subject matter in both the proceedings is
identical."
17] In the instant case, admittedly, the parties to both the suits
are not the same. The Petitioners were not parties to the earlier suit
which was filed by Mr.Talera against Respondent No.1. Though, the
Petitioners has made an application for their impleadment in the said
suit, that application came to be rejected. In the Special Leave Petition
No.1138 of 2014 preferred by the Petitioners against the judgment in
the earlier suit, no stay is granted to the hearing of the Petitioners
suits, though a specific prayer which came to be rejected. Though, the
Petitioner's Special Leave Petition No.1138 of 2014 is tagged with the
Special Leave Petition No.737 of 2014 preferred by Respondent No.1,
as observed by the Hon'ble Supreme Court, it is yet not admitted.
Hence, the fact remains that the Petitioners were not party to the
earlier suit.
18] Moreover, the issue which was directly and substantially
for consideration in the earlier suit and in the present suit is also
different. In the earlier suit for specific performance filed by
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Mr.Talera, the issues framed for consideration were,
"a) Whether he was entitled to get specific performance
of his agreement ?
b) Whether he was ready and willing to perform his
part of the contract ?
c) Whether the contract agreement on which he was
seeking the relief was legal, valid ?"
19] As against it, in the present case, the Petitioners' readiness
and willingness to perform their part of the contract and the legality
and validity of their agreements of sale are the necessary issues for
consideration before the trial Court. Hence, the issues for
consideration in both the suits are also not directly and substantially
the same.
20] Moreover, only if the Petitioners succeed in proving the
legality and validity of their agreements for sale and further prove
their readiness and willingness to perform their part of the contract
and other requisite conditions, their suits may be decreed. The
question as to which relief they will be entitled, whether of specific
performance of their agreements or for refund of earnest amount, will
then arise for consideration of the trial Court. Hence at this stage, it
cannot be assumed that relief of specific performance of the contract
will be refused to the Petitioners, merely because such relief is already
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granted to Mr.Talera.
21] Moreover, the relief granted to Mr.Talera is in respect of
entire land, whereas, the Petitioners are claiming that relief only in
respect of part of that land. Therefore, at this stage, it cannot be said
that conditions laid down in Section 10 of C.P.C. for staying of the suit
are satisfied.
22] Even as regards the propriety also, though learned counsel
for the Petitioners requests the Court to exercise its inherent powers
under Section 151 of C.P.C., however, as held by the Hon'ble Supreme
Court in the case of, Manohar Lal Chopra V/s. Raj Bahadur Rao Raja
Seth Hiralal, reported in (AIR 1962 SC 527), "inherent jurisdiction of
the Court to make orders ex debito justitiae is undoubtedly affirmed
by Section 151, CPC, but that jurisdiction cannot be exercised so as to
nullify the provisions of the Code. Where the Code deals expressly
with a particular matter, the provision should normally be regarded as
exhaustive."
23] In the case of National Institute of Mental Health and
Neuro Sciences V/s. C. Parameshwara (supra), the very same issue
was raised for consideration before the Hon'ble Supreme Court
relating to the application of Section 10 of C.P.C. and request was made
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for invoking inherent powers under Section 151 of C.P.C., when it was
found that Section 10 of C.P.C. has no application. As the High Court
has granted such request, it was held by the Hon'ble Supreme Court
that, "if Section 10 of C.P.C. has no application, it was not open to the
High Court to bye-pass Section 10 of C.P.C. by invoking Section 151 of
C.P.C.".
24] It was further held that, "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 contra-distinction to the words 'incidentally or collaterally
in issue'. Therefore, Section 10 of C.P.C. would apply only if there is
identity of the matter in issue in both the suits, meaning thereby, that
the whole of subject matter in both the proceedings is identical".
25] In the instant case, as discussed above, not only parties to
both the suits are different but the subject matter of this suit and the
earlier suit also cannot be called as identical. It also cannot be said
that the issues raised in this suit were directly and substantially
raised for consideration in the earlier suit. In such situation, one of the
important and crucial conditions laid down in Section 10 of C.P.C.
being not fulfilled, no fault can be found in the impugned order of the
trial Court, when the trial Court has rightly rejected the Petitioners'
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applications for staying their own suits.
26] Even otherwise also, the hearing of the present suits is
mostly completed and as pointed out by the learned counsel for the
Respondents, the Petitioners had already amended the plaint and
sought the additional relief of damages, along with interest, to be paid
to them.
27] Be that as it may, the fact remains that, ultimately even if
the result of the proceedings in the Hon'ble Supreme Court goes in
favour of the Petitioners, the decree passed by the trial Court will be
subject to that result in the appeal. The appeal is again the
continuation of the suit, as such, in the appeals also, the Petitioners
can seek the decree for specific performance, if their suits are decreed
and the decree for specific performance is refused by the trial Court,
only on the ground that such decree is granted in the earlier suit filed
by Mr.Talera. Thus, there is no question of any prejudice being caused
to the Petitioners. However, without the conditions laid down in
Section 10 of C.P.C. being satisfied, neither the trial Court nor this
Court can stay the proceedings of the present suit, even under Section
151 of the C.P.C., as held in the above said judgment of the Hon'ble
Supreme Court.
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28] The impugned passed by the trial Court therefore being
just, legal and correct; no interference is warranted therein. Hence,
the Writ Petitions stand dismissed.
29] Rule discharged.
30] It is made clear that, whatever observations are made in
this order are only for the purpose of deciding these Writ Petitions and
they do not touch upon the merits of the suits which are to be decided
at the time of final hearing.
[DR.SHALINI PHANSALKAR-JOSHI, J.]
