Gauhati High Court
CRP(IO)/534/2024 on 13 June, 2025
Page 1 of 15
GAHC010273172024
2025:GAU-AS:7825
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
CRP(IO) No. 534/2024
1. Keshab Kr. Deka,
S/o of Late Kamalakanta Deka,
R/o Village-Daulashal,
Mouza Pacchim Barkhetri,
District-Nalbari, Assam-781312.
2. Sri Kanak Deka,
S/o of Late Kamalakanta Deka,
R/o Village-Daulashal,
Mouza Pacchim Barkhetri,
District-Nalbari, Assam-781312.
3. Sri Rabindranath Deka,
S/o of Late Kamalakanta Deka,
R/o Village-Daulashal,
Mouza Pacchim Barkhetri,
District-Nalbari, Assam-78131.
Petitioners
-Versus-
1. Jamal Khan And Ors.,
S/o of Late Manik Khan,
R/o Village-Kamalabari,
Mouza Sarukhetri,
District-Barpeta, Assam-781307.
2. Momrez Dewan,
S/o of Abdul Dewan,
R/o Village-Chengdi,
Mouza Sarukhetri,
CRP(IO)/534/2024 Page 1
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District-Barpeta, Assam-781307.
3. Abdul Dewan,
S/o of Samad Dewan,
R/o Village-Chengdi,
Mouza Sarukhetri,
District-Barpeta, Assam-781307.
4. Smti Basanti Thakuria,
D/o of Late Kamalakanta Deka And W/o Jogeshwar
Thakuria,
R/o Village-Hatigaon House No. 6, 781038.
Nahoroni Path, Guwahati,
District-Kamrup(M), Assam.
Respondents
For Petitioner(s) 1. Mr. S. Khound, Advocate.
For Respondent(s) 1. Mr. K. Bhattacharjee, Advocate.
Date of Judgment : 13.06.2025
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT & ORDER(CAV)
1. Heard Mr. S. Khound, the learned counsel for the petitioners.
Also heard Mr. K. Bhattacharjee, the learned counsel for the
respondent Nos. 1 to 3.
2. On perusal of the order dated 24.03.2025, it appears that
name of the respondent No. 4 has been struck off from this
case.
3. This application under Article 227 of the Constitution of India
has been filed by the petitioners, namely, Sri Keshab Kr. Deka,
CRP(IO)/534/2024 Page 2
Sri Kanak Deka and Sri Rabindranath Deka, impugning the
order dated 06.09.2024, passed in Title Suit No. 55/2020 by
the Court of the learned Civil Judge Junior Division No. 2,
Barpeta, whereby it has allowed the application filed by the
present respondents under Section 10 of the Code of Civil
Procedure, 1908 for stay of the Title Suit No. 55/2020,
pending before the said Court in view of the pendency of an
earlier suit, i.e., Title Suit No. 45/2020, between the same
parties.
4. The brief facts, which are relevant for consideration of the
instant revision petition are that the present respondent No. 1,
namely, Jamal Khan, as plaintiff, had filed a suit for specific
performance of contract against the present petitioners in
respect of a plot of land measuring 1 Katha 6 Lechas which is
more specifically described in the Schedule-B of the plaint filed
in the said suit. Subsequently, the present petitioners had
instituted a suit before the Court of the learned Munsiff No. 1,
Barpeta, which was registered as Title Suit No. 55/2020,
wherein, the relief of declaration of right, title and interest of
the plaintiffs and recovery of khas possession of the suit land
by evicting the defendants was sought for in respect of land,
which has been described in Schedule-B of the plaint filed in
the said suit. The present petitioners had sought for the
declaration of right, title and interest over entire Schedule-A
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land measuring, 7 Bighas 3 Kathas 5 Lechas. It is pertinent to
mention herein that both the suits were filed in the year 2020.
5. In the Title Suit No. 55/2020, the present respondent No. 1
and other defendants filed an application on 13.10.2023 under
Section 10 of the Code of Civil Procedure, 1908 read with
Section 151 of the said Code for stay of the subsequent suit,
(i.e. Title Suit No. 55/2020) as the matter in subsequent suit
was claimed to be directly and substantially in issue in the
previously instituted suit, i.e., Title Suit No. 45/2020. By the
impugned order dated 06.09.2024, the prayer for stay of the
Title Suit No. 55/2020 was allowed by the Trial Court.
6. Mr. S. Khound, the learned counsel for the petitioners has
submitted that the Trial Court has erred in passing the
impugned order inasmuch as, it failed to take into
consideration that the parties in both the suits, i.e., Title Suit
No. 45/2020 as well as Title Suit No. 55/2020 were not the
same. He submits that in the subsequent suit filed by the
present petitioners, two more defendants were added and
reliefs were claimed against those defendants also, namely,
Momrez Dewan and Abul Dewan, who were not parties in the
earlier suits, i.e. Title Suit No. 45/2020. He also submits that
the subject-matter in issues in both the suits are not the same
inasmuch as, the previous suit was for specific performance of
contract in respect of 1 Katha 6 Lechas of land described in
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Schedule-B of the previous suit, whereas, in the subsequent
suit the relief of declaration of right, title and interest was
sought for in respect of a much bigger area, i.e. a land
covering 7 Bighas 3 Kathas and 5 Lechas, which is fully
described in Schedule-A of the plaint filed in the subsequent
suit.
7. The learned counsel for the petitioners has also submitted that
even in respect of Schedule-B land in both the suits,
boundaries of the suit lands are not the same. Though the dag
no. & patta no. of both the suit lands are same, he submits
that in the Schedule-B land of the subsequent suit, which is
bounded by land of one Sarbat Ali, whereas, in the previous
suit, the eastern boundary of the Schedule-B land is bounded
by the land of one Suren Barman. He, therefore, submits that
the subject-matters of both the suits are also not the same.
8. He further submits that in the written statement filed by the
present respondents in Title Suit No. 55/2020, no plea under
Section 10 of the Code of Civil Procedure, 1908 for staying the
said suit was taken in view of the pendency of an earlier suit.
He also submits that even the application under Section 10 of
the Code of Civil Procedure, 1908 has been filed very belatedly
after three years of the filing of the Title Suit No. 55/2020,
when the cross-examination of plaintiff's evidence was already
over.
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9. In support of his submissions, the learned counsel for the
petitioners has cited the following rulings:-
i. "Biswanath Paul Vs. Ahi Bhusan Chakraborty
"reported in "(2019)1GLR 125;"
ii. "Aspi Jal And Another Vs. Khushroo Rustom
Dadyburjor" reported in "(2013) 4 SCC 333;"
10. On the other hand, Mr. K. Bhattacharjee, the learned counsel
for the respondent Nos. 1 to 3 has opposed the prayer of the
present petitioners and has submitted that the Trial Court has
correctly passed the impugned order. He submits that the
matter in issue in Title Suit No. 55/2020 is also directly and
substantially in issue in the previously instituted suit, i.e., Title
Suit No. 45/2020.
11. The learned counsel for the respondent Nos. 1 to 3 has
submitted that the present respondents had prayed for relief
of specific performance of contract in respect of 1 Katha 6
Lechas of land and any decree passed in the previously
instituted suit would have an impact on the subsequently
instituted suit also and therefore, the Trial Court has correctly
stayed the subsequent suit, i.e. Title Suit No. 55/2020. He also
submits that the parties in both the suits are same in respect
of the suit land over which relief was claimed by the present
respondents. He further submits that addition of two more
defendants in the subsequent suit is only a ploy adopted by
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the present petitioners, to avoid the operation of Section 10 of
the Code of Civil Procedure, 1908 in respect of the said suit.
12. He submits that if the subsequent suit, i.e. Title Suit No.
55/2020 is not stayed, it may result in conflicting decrees
which would not be in the interest of justice. In support of his
submissions, he has cited a ruling of the Apex Court in the
case of "National Institute of Mental Health & Neuro Sciences
Vs. C. Parameshwara" reported in "(2005) 2 SCC 256."
13. I have considered the submissions made by the learned
counsel for both the sides and have gone through the
materials available on record, including the rulings cited by the
learned counsel for both the sides in support of their
submissions.
14. The Apex Court in the case of "Shalini Shyam Shetty And
Another Vs. Rajendra Shankar Patil" reported in "(2010) 8 SCC
329" has laid down broad guidelines under which the power of
superintendence of the High Court under Article 227 of the
Constitution of India can be exercised. It has observed as
follows:-
"49. On an analysis of the aforesaid decisions of this
Court, the following principles on the exercise of
High Court's jurisdiction under Article 227 of the
Constitution may be formulated:
(a) .................................
(b) ............................................
CRP(IO)/534/2024 Page 7
(c) High Courts cannot, at the drop of a hat, in
exercise of its power of superintendence under
Article 227 of the Constitution, interfere with the
orders of tribunals or courts inferior to it. Nor can
it, in exercise of this power, act as a court of
appeal over the orders of the court or tribunal
subordinate to it. In cases where an alternative
statutory mode of redressal has been provided,
that would also operate as a restrain on the
exercise of this power by the High Court.
(d) The parameters of interference by High Courts in
exercise of their power of superintendence have
been repeatedly laid down by this Court. In this
regard the High Court must be guided by the
principles laid down by the Constitution Bench of
this Court in Waryam Singh [AIR 1954 SC 215]
and the principles in Waryam Singh [AIR 1954 SC
215] have been repeatedly followed by
subsequent Constitution Benches and various
other decisions of this Court.
(e) According to the ratio in Waryam Singh [AIR 1954
SC 215] , followed in subsequent cases, the High
Court in exercise of its jurisdiction of
superintendence can interfere in order only to
keep the tribunals and courts subordinate to it,
"within the bounds of their authority".
(f) In order to ensure that law is followed by such
tribunals and courts by exercising jurisdiction
CRP(IO)/534/2024 Page 8
which is vested in them and by not declining to
exercise the jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f),
High Court can interfere in exercise of its power
of superintendence when there has been a patent
perversity in the orders of the tribunals and courts
subordinate to it or where there has been a gross
and manifest failure of justice or the basic
principles of natural justice have been flouted.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of
law or fact or just because another view than the
one taken by the tribunals or courts subordinate
to it, is a possible view. In other words the
jurisdiction has to be very sparingly exercised.
(i) ..........................................
(j) ...........................................
(k) The power is discretionary and has to be exercised
on equitable principle. In an appropriate case, the
power can be exercised suo motu.
(l) On a proper appreciation of the wide and
unfettered power of the High Court under Article
227, it transpires that the main object of this
article is to keep strict administrative and judicial
control by the High Court on the administration of
justice within its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain
efficiency, smooth and orderly functioning of the
CRP(IO)/534/2024 Page 9
entire machinery of justice in such a way as it
does not bring it into any disrepute. The power of
interference under this article is to be kept to the
minimum to ensure that the wheel of justice does
not come to a halt and the fountain of justice
remains pure and unpolluted in order to maintain
public confidence in the functioning of the
tribunals and courts subordinate to the High
Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant
of relief in individual cases but should be directed
for promotion of public confidence in the
administration of justice in the larger public
interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the
power under Article 227 may be unfettered but its
exercise is subject to high degree of judicial
discipline pointed out above.
(o) An improper and a frequent exercise of this power
will be counterproductive and will divest this
extraordinary power of its strength and vitality."
15. Keeping in view the aforesaid principles, let us now examine
as to whether the Trial Court has by passing the impugned
order committed patent perversity or has caused gross and
manifest failure of justice or whether basic principles of
natural justice have been flouted in passing the impugned
order.
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16. If we peruse the plaints in both the title suits which are
involved in this case, namely, Title Suit No. 45/2020 as well as
Title Suit No. 55/2020, it appears that in the first suit, which
was for specific performance of contract in respect of a plot of
land measuring 1 Katha 6 Lechas described in Schedule-B of
the said plaint. The same plot of land is a part of a larger plot
of land measuring 7 Bighas 3 Kathas 5 Lechas, more
particularly described in Schedule-A of the said plaint.
Whereas, the second suit that is Title Suit No. 55/2020 is in
respect of declaration of right, title and interest of the present
petitioners over a plot of land covered by 7 Bighas 3 Kathas 5
Lechas and eviction of the defendant No. 1 and other
defendants from a plot of land covered by 1 Kathas 6 Lechas
which is described in Schedule-B of the said plaint.
17. The Trial Court, in the impugned order, has observed that the
subject-matter in issue in the second suit is directly and
substantially in issue in previously instituted suit. This Court is
of considered opinion that the finding of the Trial Court in the
impugned order that the subject-matter of both the suits are
same cannot be regarded as perverse as the Schedule-A and B
in both the plaints describes the identical plot of lands.
Moreover, basically the land for which main relief has been
claimed in both the suits are the same land i.e., a plot of land
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covered by 1 katha 6 lechas which is described in Schedule-B
of the plaints of both suits.
18. Further, it also appears that though in the subsequent suit, i.e.
Title Suit No. 55/2020 two more defendants were added who
were not the party in the earlier suit. However, if we carefully
peruse the plaint of the Title Suit No. 55/2020, the main
grievance of the plaintiffs in Title Suit 55/2020 is against the
defendant No. 1, who is alleged to have forcefully trespassed
into the Schedule-B land described in the plaint, along with
defendant Nos. 2 and 3.
19. The allegation of trespass in the second suit is in respect of
mainly Schedule-B land of the plaint from where their eviction
is sought for and the said land is the same land in respect of
which the earlier suit, i.e. Title Suit No. 45/2020 has been
filed.
20. Under such circumstances if both the suits are allowed to be
continued, there is a probability of recording of conflicting
findings in both the suits. This Court is of considered opinion
that the observation made in the impugned judgment by the
Trial Court that the relief claimed in the previous suit, if
ultimately allowed may also operate as Res judicata in
subsequent suit appears to be correct.
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21. The Apex Court has observed in the case of "National Institute
of Mental Health & Neuro Sciences Vs. C. Parameshwara"
reported in "(2005) 2 SCC 256" 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 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
contradistinction to the words "incidentally or
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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.
22. In the instant case, though in both the suits the relief claimed
appears to be different, i.e. in the previous suit the relief is of
specific performance of contract, whereas in the subsequent
suit the relief is of declaration of right, title and interest and
eviction of the defendants. However, for deciding both the
suits, the question as to whether the present respondent
namely, Jamal Khan i.e., the defendant No.1 in Title Suit No.
55/2020 and the plaintiff of Title Suit No. 45/2020 is the
trespasser into the Schedule-B land, may have to be decided
in both the suits and if both the suits are allowed to run
parallelly, there is possibility of rendering of conflicting
judgments in respect of the said issue in both the suits.
23. Hence, in the considered opinion of this Court the Trial Court
has correctly applied the provisions of Section 10 of the Code
of Civil Procedure, 1908 in the subsequent suit, i.e. Title Suit
No. 55/2020 and stayed the same by passing the impugned
order.
24. We have seen that the Apex Court in the case of "Shalini
Shyam Shetty And Another Vs. Rajendra Shankar Patil (supra)
has observed that the interference by the High Court in
exercise of its superintending power under Article 227 of the
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Constitution of India has to be very sparingly exercised and
only in cases where there is gross and manifest failure of
justice or when the basic principle of natural justice has been
flouted.
25. However, in the instant case, the impugned order appears to
be a well-reasoned order justifying the necessity of staying of
the subsequent suit, i.e. Title Suit No. 55/2020 in order to
prevent the possibility of conflicting judgments in respect of
the same subject-matter in two separate suits.
26. This Court, therefore, finds no irregularity or perversity or a
case where the Trial Court had acted beyond jurisdiction or
had declined to exercise the jurisdiction vested in it justifying
any interference by this Court in exercise of its superintending
power under Article 227 of the Constitution.
27. This revision petition is accordingly dismissed with cost.
JUDGE
Comparing Assistant
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