Delhi High Court
Sant Singh Arora vs Smt Ved Prabha & Ors on 23 August, 2016
$~A-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 23.08.2016
+ C.R.P. 69/2015 and CM No. 8575/2015 (stay)
SANT SINGH ARORA ..... Petitioner
Through Mr.Neeraj Kumar Gupta, Advocate.
versus
SMT VED PRABHA & ORS ..... Respondents
Through Mr. Manu Nayar, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. Present petition is filed seeking to impugn the order dated 20.02.2015
passed by the trial court dismissing the application of the petitioner under
Section 10 CPC.
2. Respondents No. 1 to 3/plaintiffs have filed the present suit for
possession, mesne profits and damages regarding property No. 4A/29, Old
Rajinder Nagar, New Delhi. The said property was originally owned by the
grandfather of the plaintiffs, namely, Sh. Hotu Ram. The said Sh.Hotu Ram
is said to have executed a Will dated 15.09.1979 whereby he purportedly
bequeathed his entire property to his son Sh. Madan Lal Tuteja, the
predecessor of respondents No.1 to 3. Various litigations followed on this.
The widow of Sh. Hotu Ram, namely, Smt. Govindi Bai and the other son of
Sh.Hotu Ram, namely, Sh.Om Prakash filed a suit for declaration that the
C.R.P. 69/2015 Page 1
said Will purportedly executed by late Sh. Hotu Ram is illegal and void. The
predecessor of respondents No. 1 to 3, namely, Shr.Madan Lal Tuteja also
filed a probate petition for probate of the said Will. The probate petition was
dismissed on 09.12.2011. As far as the suit that was filed by Smt.Govindi
Bai and Sh. Om Prakash is concerned, the same, on account of the death of
the said persons, stood abated.
3. The petitioner claims to have entered into physical possession of the
suit property in January 1994 as a tenant and vide agreement to sell dated
15.02.1994 said to have been executed by Smt. Govindi Bai and Sh.Om
Prakash claims rights
4. It may be noted that in the present petition, the petitioner has not
annexed a copy of his application under Section 10 CPC. It was contended
before the trial court by the petitioner that an appeal against the dismissal of
the probate petition is pending and since the matter involved in the probate
petition i.e. about the Will has a substantial bearing on the outcome of this
suit, it may be stayed under Section 10 CPC. The trial court dismissed the
application of the petitioner stating that there is a difference between a suit
and a petition of probate. Section 10 CPC deals with a previously instituted
suit. Probate petition not being a previously instituted, the provisions of
Section 10 CPC would not apply.
5. I have heard the learned counsel for the parties.
6. Learned counsel for the petitioner has strenuously argued that the
present suit is liable to be stayed. He relies upon the judgment of this court
in the case of Amar Deep Singh vs. The State & Ors., AIR 2006 Delhi 190
and V.K.Dhingra vs. Shriram Scientific and Industrial Research
Foundation, 146 (2008) DLT 793.
C.R.P. 69/2015 Page 2
7. Learned counsel for the respondents has pointed out that the petitioner
is a habitual litigant and is filing one petition after the other having illegally
taken possession of the suit property. This, he submits, is another means to
that end.
8. Section 10 CPC reads as follows:-
"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."
9. The Supreme Court in the case of National Institute of Mental
Health and Neuro Sciences vs. C. Parameshwara, AIR 2005 SC 242 in
para 8 held as follows:-
"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
C.R.P. 69/2015 Page 3
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 contra-
distinction to the words "incidentally or collaterally in issue".
Therefore, Section10 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.
10. Accordingly, Section 10 would not apply to the proceedings of any
other nature instituted under another statute. In that case the Supreme Court
held that the proceedings before the labour court cannot be equated with the
proceedings before the civil court. They are not the courts of concurrent
jurisdiction. In the circumstances, it was held that Section 10 CPC would
have no application.
11. Reliance of the petitioner on the judgments of Amar Deep Singh vs.
The State & Ors.(supra) is misplaced.
12. Reference may also be had to the judgment of the Supreme Court in
the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh & Ors., (1993) 2
SCC 507. The Supreme Court in the said judgment held that the only issue
in a probate proceeding relates to the genuineness and due execution of the
Will. The probate court does not decide any question of title or existence of
the property itself.
13. In the present case, the plaint filed seeks a decree of possession of the
suit property, a decree for a sum of Rs.1,44,000/- and a decree for mesne
profits/damages.
14. The plaintiffs/respondents No.1 to 3 herein have sought reliefs which
a probate court cannot grant. The provisions of Section 10 CPC would not
C.R.P. 69/2015 Page 4
be applicable to the facts of the present case. There is no infirmity in the
order of the trial court.
15. The present petition accordingly is dismissed.
JAYANT NATH, J
AUGUST 23, 2016
rb
C.R.P. 69/2015 Page 5
