Col. Y.L. Sud vs Ansal Properties And Industries ...
2005 Latest Caselaw 1585 Del

JUDGMENT

Swatanter Kumar, J.

1. By this order I would dispose of IA No. 5971/2005 in CS(OS) No. 609/2004 filed under Section 10 read with Section 151 of the Code of Civil Procedure (for short 'CPC') on behalf of the defendant and TR.P.(C) No. 22/2005, a petition filed by Col. Y.L. Sud under Section 24 of the CPC, as both of them arise between the same parties and is based upon common facts.

2. The facts which are common to both these cases as they emerge from the record are that M/s. Ansal Properties and Industries Ltd., a company duly incorporated under the provisions of the Companies Act, filed a suit for permanent injunction against Col. Joginder Sud stating that Baba Hardyal Singh was holding the leasehold rights in perpetuity of plot of land measuring 1.10 acre situated on Block No. 148 in New Capital of Delhi, known as 4, Hailey Road, New Delhi vide Perpetual Lease Deed dated 1.4.1936. A single storeyed building was raised on the said plot by the said person. A family partition took place in the family of said Baba Hardyal Singh by virtue of which 1/3rd undivided share in the said property fell to the share of Baba Nihar Singh, one out of the three sons of the said Baba Hardyal Singh, along with the three sons of Bawa Nihal Singh, namely Bawa Mohinder Singh, Baba Rajinder Singh and Baba Devinder Singh Bedi in equal shares, therefore, they had 1/3rd share each out of 1/9th share of the property. Baba Rajinder Singh and Baba Devinder Singh Bedi sold, transferred, conveyed all their undivided share vide Sale Deed dated 19.4.1995 and 15.6.1946 to one Dr. Chiranji Lal. Therefore, Dr. Chiranji Lal became the shareholder of the 2/3rd undivided share in the aforesaid property out of the 1/3rd share of Baba Nihal Singh. Mr Dinesh Sood, Col. Joginder Sood, Shri Ramesh Sood, Dr. Mohinder Sood as the sons and Ms. Chitra Sood and Ms. Vidyotma Sood as the daughters of Dr. Chiranji Lal who died intestate and his 2/3rd share devolved upon all these persons. Sh. Dinesh Sood and Ms. Vidyotma Sood sold their undivided share in the aforesaid property measuring 394 sq. yds. to the plaintiff vide sale deed dated 27th November, 1998. Ms. Chitra Nath, also sold her undivided share measuring 197 sq. yds. to the plaintiff by a registered sale deed dated 27.11.1998. As such the plaintiff became owner of 591 sq. yds. of the area in the said property. According to the Company it was placed in vacant and peaceful possession of the portions which were in possession of said Sh. Dinesh Sood and Ms. Vidyotma Sood and Ms. Chitra Nath and became the co-owner of the property. Col. Joginder Sood one of the heirs of late Dr. Chiranji Lal and the sole co-owner did not sell the property to the plaintiff and malafidely wanted to dispossess the plaintiff from the room marked X and X1 in the site plan annexed to the plaint, and also wanted to block the entrance from point YZ and Z2 unlawfully and illegally. That the disputes were created by Mr. Sood on 20th March, 2004, when he caused obstruction to the use of the property and threatened to encroach upon the property by the plaintiff in possession of the plaintiff and the cause of action is stated to be a continuing one. In these circumstances, a suit for injunction was filed by the company against Col. Sood praying for an injunction restraining the defendant from interfering in the peaceful use, occupation, enjoyment and possession of the plaintiff in the portion shown in red colour in the site plan annexed to the plaint along with some other reliefs. This suit was filed in the Court of Senior Sub-Judge on or about 15th April, 2004 and registered as Suit No. 149/2004.

3. This suit was contested by Col. Joginder Sood, who took various preliminary objections to the maintainability of the suit and stated on merits that the plaintiff had made false averments and the plaintiff had no access to the courtyard in question from point Z shown in the otherwise incorrect site plan filed by the plaintiff. There was no entry in the said property from point 'Z'. The possession of the plaintiff over a shed was also disputed and there was no common passage. While denying the correctness of the site plan, it was also stated that the other brother of Col. Sud, Dr. Mohinder Singh, who is settled in USA had relinquished his share in the property in favor of Col. Sud and ever since 1989, he was in exclusive possession as owner of the portion shown red colour in the site plan filed by the defendant in court. In the year 1989 itself all the children of Dr. Chiranji Lal had come to an understanding amongst themselves, whereby they occupied separate and specified portions. Sh. Dinesh Sud, Ms. Vidyumata Sood and Mrs. Chitra Nath, occupied the portion shown in green colour in the map annexed by the defendant except the portion occupied by Sh. Keshav Sud and Sh. Hari Dass. It was, thus, prayed that the suit of the plaintiff be dismissed with costs under Section 35B of the Code of Civil Procedure.

4. Col. Y.K. Sud, one of the sons of late Dr. Chiranji Lal, filed a suit in this court being suit no. 609/2004 for permanent as well as mandatory injunction, stating that Dr. Chiranji Lal had paid the earnest money through Sh. Mohinder Singh Bedi, son of Nihal Singh and all other parts of the sale consideration at the time of execution of the sale deed and its registration, out of the funds provided by Dr. Chiranji Lal, inclusive of the portion purchased by Sh. Hari Das with the funds provided by him. As such, Dr. Chiranji Lal came to own and possess 1/3rd portion of the entire property bearing no. 4, Alipur Road, New Delhi, portion shown in yellow colour in the plan marked 'PX'. Ramesh Sud, the eldest son separated himself from the rest of the family and shifted to the portion in the backside of the said property. Dr. Chiranji Lal continued to live and enjoy the rest of the entire property owned and possessed by him till his brother, Sh. Hari Das filed a suit for partition on the ground that he was a co-owner in the said afore-mentioned property and the said portion was separated in the year 1981. The separated portion of Hari Das was shown in orange colour.

5. It is clear from the above narrated facts and the plaint filed by the parties in their respective suits that in the prior suit, plaintiff i.e. Ansal Properties have claimed a relief for injunction by means of permanent prohibitory injunction against Col. Joginder Sood while in the subsequent suit, Col. Y.L. Sood has claimed prohibitory as well as mandatory injunction against Ansal Properties, the plaintiffs in the previous suit. While Col. Y.L. Sood and Col. Joginder Sood both are sons of late Dr. Chiranji Lal and are claiming interest in the property through a common ancestor, there are disputes with regard to the portion, and utilisation of the properties. Strictly speaking, the scope of controversy and questions of fact and law are neither substantially or materially identical in both the suits. In order to satisfy the requirements of Section 10 of the Code of Civil Procedure, the applicant has to show that matters in issue are directly and substantially in issue in the previously instituted suit between the same parties or through whom they claim. The purpose of Section 10 is to avoid multiplicity of litigation, inviting of conflicting decisions from different courts on identical matters between the same parties. The Trial Court is trying the suit in relation to part of the same property for which the suit before the High Court is pending. The parties to the suit are different and the scope of both the suits is not identical. In fact, the issues which are directly and substantially in issue in both the suits are of different dimensions and consequences. The portion of the property in relation to which injunctions are sought for, are also not similar. The defendant in the suit before the Trial Court and plaintiff before the High Court in the other suit are claiming different portions and in one suit the prayer is limited to the extent of prohibitory injunction while in the other it is for prohibitory as well as mandatory injunction in regard to removal of an obstruction.

6. The argument of the applicant while opposing the application of the plaintiff under Section 10 is that the subject matter, parties and issues in both the suits are not substantially or materially the same, much less they are similar or identical. Having raised that argument now in the petition for transfer, the plaintiff/petitioner cannot be permitted to take a contrary stand. Such a stand would in any case be diametrically opposite to what has been argued by them earlier. Besides that, the ingredients of Section 24 of the Code of Civil Procedure are not satisfied and even the ends of justice would not require that both these suits should be tried by one and the same court, merely because it would be convenient to the parties. The pecuniary jurisdiction of both the suits is different and no special circumstances exists which would justify transfer of the suit to this Court. Besides the fact that the transfer petition is being opposed vehemently by the defendant, apparently none of the parties would suffer any prejudice if the suits are tried by the respective courts of competent jurisdiction. It would be in the interest of justice and more appropriate for expeditious disposal of this suit, and in the interest of the parties, that both the suits are decided by the courts of competent jurisdiction where they are pending.

7. In this regard, he relied upon the judgment in the case of Ranchhoddas Shamji Khirani and Anr. v. Ramchandra Rao Moreshwar Karkare , Brijlal & Co. v. Madhya Pradesh Electricity Board and a judgment of this court in the case of J.C. Batra etc. v. Radhey Shyam 1975 Rajdhani Law Reporter 164,

8. The plea raised to oppose the stay of the suit that the fundamental test for deciding an application of the present kind is whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. If it was so, then alone provisions of Section 10 would be attracted and the key words 'the matter in issue is directly and substantially in issue' in contradistinction to 'incidentally or collaterally in issue' have to be strictly construed, so as to achieve the objects of provisions of Section 10. The reliance is placed upon the following dictum of the Supreme Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara where the court held as under:-

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" are used in contradistinction to the words 'ncidentally 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

9. In the case of British Indian Corporation Ltd. v. Rashtraco Freight Carriers , the Supreme Court took the view that where the goods were entrusted by appellant to respondent-carriers for transportation and the carrier had taken custody of the goods and then filed a suit for injunction, restraining the company from taking forcible possession of the goods on the allegation that a sum of Rs. 13,48,817.13 was due from the appellant for arrears of transportation charges, the interim injunction was granted which, however, was modified by the Appellate Court. Later on the appellant filed a suit for recovery of goods which were lawfully entrusted to the carrier. On an application under Section 10, which was dismissed by the Trial Court, but was subsequently allowed in revision by the Supreme Court, the Supreme Court while disturbing the judgment of the High Court held as under:-

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 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. It is seen that the claim of the respondent in Suit No. 612 of 1994 is for the recovery of the alleged dues said to be payable by the appellant-Corporation while the suit of the appellant is for recovery of the goods lawfully entrusted to an unlawfully detained by the respondent. The causes of action are entirely different. There is no common issue directly or substantially in issue in both the suits. The High Court, therefore, committed gross error of law in staying the later suit.

10. Applying the above principles to the facts of the present suit, the features of distinctions on fact and law are more than substantial and cannot be ignored. Furthermore, it may ultimately lead to delay of both the suits as the judgment of the Trial Court, even if given, can only be read as a piece of evidence in the previous suit as the same would not amount to determination of disputes between the parties to the subsequent suit. The findings in the prior suit would not operate a res judicata in the subsequent suit. Resultantly, no fruitful purpose would be served by staying the proceedings in the previous suit. The purpose of Section 10 certainly is not intended to delay the disposal of the suits, but is to ensure avoidance of multiplicity of litigation and to avoid conflicting decisions. On somewhat similar subject matters and on the questions materially and substantially the same, the obligation on the court not to proceed with the trial of the suit, is subject to the limitation of the provisions and merely because an application has been filed under Section 10 does not in any manner, put an embargo on the power of the court to examine the suits on merits. Reference can be made to the case of Pukhraj D. Jain and Ors. v. G. Gopalakrishna .

11. As per the law afore-stated, applied to the facts of the present case, the petition filed under Section 10 has no merit and is liable to be dismissed. The learned counsel appearing for the petitioner in the transfer petition no. 22/2005 and plaintiff in the suit, while relying upon the judgment in the case of Sri Pamban Kumaragurubara Swami Temple v. K. Subramanya Mudaliar , Indian Overseas Bank, Madras v. Chemical Construction Co. and others and Gupte Cardiac Care Centre and Hospital v. Olympic Pharma Care (P) Ltd. has argued that the suit should be transferred to this court as it would be expedient for the ends of justice that both these suits are tried by one and the same court. He also relied upon the following dictum of the Supreme Court in the case of Indian Overseas Bank, Madras (supra)

15. We are of opinion, this petition must succeed. Section 25 of the Code of Civil Procedure as substituted for the former section by the Code of Civil Procedure (Amendment) Act, 1976, empowers this Court to direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State, if it is satisfied that such an order is 'expedient in the ends of justice.' The former S. 25 empowered the State Government to transfer, on receiving a report from the Judge concerned of the High Court, to transfer suits or proceedings in certain circumstances from one High Court to another High Court. The scope of the former Section was very restricted as it provided only for transfer of any proceeding pending in a High Court, presided by a single Judge. It was though that the State Government was not the appropriate agency for exercising this power of transfer, obviously because such exercise is a judicial function. For these reasons, the new S. 25 which has been substituted for the former one, confers on this Court very wide powers of transfer which are as extensive as its powers under Section 406 of the Code of Criminal Procedure, 1973. ...

18. Although, the exercise of this discretionary power cannot be imprisoned within the strait-jacket of any cast iron formula uniformly applicable to all situations. Yet, certain broad propositions as to what may constitute a ground for transfer can be deduced from judicial decisions. One of them is that where two suits raising common questions of facts and laws between parties common to both the suits, are pending in two different courts, it is generally in the interest of justice to transfer one of those suits to the other forum to be tried by the same Court, with consequent avoidance of multiplicity in the trial of the same issues and the risk of conflicting decisions thereon. The instant case falls squarely within this category.

12. As is evident from the facts of the present case that the suits are by different persons but relate to part of the same property, each of the parties have their own rights over the portion of the property and each co-owner has different and distinct rights and obligations in relation to the property in question, it cannot even remotely be stated that the findings recorded in the previous suit would tantamount to res judicata in the subsequent suit. It is the own argument of the plaintiff in the present suit, while opposing the application of the defendant under Section 10 that both these suits do not involve any controversy which is substantially and materially same in both the suits. The suits relate to two different and distinct portions of the property. One relates to the ownership of Col. Joginder Sood and the other of Col. Y.L. Sood. Provisions of transfer cannot be invoked as a matter of routine. There must exist proper ground for transferring the suit. It is not even in the interest of justice that both these suits should be tried by one and the same court. There is also no possibility of conflicting decisions because one can be read as a evidence into the other as it would relate to a different cause of action between different parties and a definite and distinct portion, though of the same property. There is no identical cause of action, issues or rights determined of the same parties.

13. In view of the above detailed discussion, I find no necessity to transfer the suit pending in the Trial Court to this court. Consequently, both the applications under Section 10 and transfer petition under Section 24 of the Code of Civil Procedure are dismissed, while leaving the parties to bear their own costs.

14. It is observed that both the suits may be proceeded as expeditiously as possible.