Gujarat High Court
Nitaben Kamleshbhai Shah vs Amrishbhai Rambhai Patel on 31 July, 2025
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Reserved On : 08/07/2025
Pronounced On : 31/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6880 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT Sd/-
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Approved for Reporting Yes No
✓
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NITABEN KAMLESHBHAI SHAH
Versus
AMRISHBHAI RAMBHAI PATEL & ORS.
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Appearance:
GANDHI LAW ASSOCIATES(12275) for the Petitioner(s) No. 1
MR BHAVESH BABARIYA(6788) for the Respondent(s) No. 2
MS. KOMALBEN M DESAI(17410) for the Respondent(s) No. 1
CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
CAV JUDGMENT
TABLE OF CONTENTS
THE BRIEF FACTS OF THE CASE.......................................................4
TRANSACTIONS THAT TAKEN PLACE BETWEEN THE PARTIES...........5
THE CIVIL SUITS FILED BETWEEN THE PARTIES...............................7
SUBMISSION OF PETITIONER - DEFENDANT NO.14 - SUBSEQUENT
PURCHASER...................................................................................19
SUBMISSION OF RESPONDENT NOS. 1 AND 2 - PLAINTIFFS................28
POINTS FOR DETERMINATION........................................................36
ANALYSIS.......................................................................................37
CONCLUSION..................................................................................59
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1. Rule returnable forthwith. Learned advocate Mr.
Komalben M. Desai waives service of the Rule on behalf of
respondent No. 1, and Mr. Bhavesh Babariya waives service of
the Rule on behalf of respondent No. 2. The presence of the
other respondents is not required for the adjudication of the
issue germane in the present writ application. With the consent
of learned advocates appearing for the respective parties, the
matter was finally heard.
2. At the outset, Learned advocate Mr. Kunal Vyas,
appearing for the petitioner, tenders an additional affidavit on
behalf of the petitioner, sworn on 07.07.2025.
3. Per contra, Learned Senior Counsel Mr. P.K. Jani and
Learned Senior Counsel Ms. Trusha Patel, appearing for the
caveators, have strong objections to the submission of
documents annexed with such an additional affidavit of the
petitioner, which, according to them, are not part of the
record of Special Civil Suit No. 1100 of 2011, which is the
subject matter of the present writ application.
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4. As such, the documents which are annexed with the
additional affidavit are part of Special Civil Suit No. 399 of
2008, pending before the Principal Senior Civil Judge,
Ahmedabad (Rural), wherein the Caveators are party to the
suit; thus, this Court allows the petitioners to submit such
documents by taking on record the said additional affidavit.
5. As far as possible, the parties will be referred to as per
their designation given hereinafter.
6. The present writ application has been filed under Article
227 of the Constitution of India, arising out of the order dated
11.04.2025 passed by the Trial Court in an application filed
under Section 10 of the Code of Civil Procedure, 1908
(hereinafter referred to as the "CPC") by the petitioner -
defendant No. 14, below Exh. 353 in Special Civil Suit No.
1100 of 2011 (hereinafter referred to as "the present suit"),
seeking the following reliefs:-
"A. Your Lordships may be pleased to issue Writ in the
nature of Certiorari and/or any other appropriate Writ,
Order or Direction quashing and setting aside the
impugned Order dated 11.04.2025 (Annexure-A) passed
by the Learned Ld. Principal Senior Civil Judge,
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Ahmedabad (Rural) below Exhibit 353 in Special Civil
Suit No.1100 of 2011 in the interest of justice;
B. Pending admission, hearing and final disposal of the
petition, your Lordships may be pleased to stay further
proceedings in Special Civil Suit No. 1100 of 2011, which
is pending before the Ld. Principal Senior Civil Judge,
Ahmedabad (Rural);
C. An ex-parte ad-interim order in terms of para (B)
above may be granted in the interest of justice;
D. Pass such other and further order or orders as may be
thought fit in the interest of justice."
THE BRIEF FACTS OF THE CASE
7. The petitioner in the present proceedings is the original
defendant No. 14 (hereinafter referred to as the "subsequent
purchaser"), whereas respondent nos.1 & 2 herein are the
original plaintiffs - Agreement to Sell Holders (hereinafter
referred to as "ATS Holders"), who filed Special Civil Suit No.
1100 of 2011, which is the subject matter of the present writ
application. The respondent no. 3 - Son of Prabhudas
Vallabhdas Modi (hereinafter referred to as the " Donee"), and
Respondent Nos. 4 to 7 and 16 - Legal heirs of Prabhudas
Vallabhdas Modi (hereinafter referred to as " legal heirs"),
Respondent No. 8 - Power of Attorney of Prabhudas
Vallabhdas Modi (hereinafter referred to as the " PoA"), and
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Respondent nos. 9 to 14 - Purchasers (hereinafter referred to as
the "Purchasers"), and respondent No. 15 - subsequent
purchaser (hereinafter referred to as the " Co-subsequent
purchaser"), who are as such original defendant nos. 1 to 3, 5
to 13, 15, and defendant no. 4, respectively.
8. To better understand the contours of the controversy
germane in the matter, I would like to narrate the facts and
compartmentalize them as follows:-
TRANSACTIONS THAT TAKEN PLACE BETWEEN THE
PARTIES.
9. One Prabhudas Vallabhdas Modi was the original owner
of the property (hereinafter referred to as the " Original
Owner") situated at Village Makarba, District Ahmedabad, at
Survey No. 69/2, admeasuring 6475 sq. mts., and Survey No.
693, admeasuring 5364 sq. mt. (hereinafter referred to as the
"suit land").
9.1. Whereas, defendant nos. 1 to 6 are the legal heirs of the
said Prabhudas Vallabhdas Modi. The power of attorney was
executed by Prabhudas Vallabhdas Modi in favour of defendant
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no. 7 - PoA on 10.02.2007. Defendant nos. 8 to 13
(purchasers) purchased the suit land by way of a registered
sale deed executed on 04.07.2008, which was executed by
defendant no. 7 -PoA.
9.2. The plaintiffs have entered into an Agreement to Sell
(herein after referred as "ATS") with defendant nos. 8 to 13 -
ATS holders on 08.07.2008 in relation to the suit land.
9.3. The original owner - Prabhudas Vallabhdas Modi appears
to have executed a Gift Deed on 28th March 2008 in favour of
defendant no. 1 - Donee in relation to the suit land, but the
same was presented for its registration on 25.07.2008 to the
Sub-Registrar, Ahmedabad (Paldi) and in fact registered on
28.07.2008, i.e., subsequent to the registered sale deed
executed by defendant no. 7 -PoA in favour of defendant nos.
8 to 13 - purchasers on 04.07.2008.
9.4. Defendant no. 1 - Donee appears to have by way of
registered sale deed on 13.05.2013 in favour of defendant nos.
14 and 15 - subsequent purchasers, thereby sold the suit land
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having executed such sale deed on 28.09.2010 .
9.5. Thus, by virtue of the aforesaid transactions that have
taken place to date, on one hand, defendant nos. 8 to 13 -
purchasers are claiming to be the owners of the suit land, and
on the other hand, defendant no. 1 - Donee, as well as
defendant nos. 14 and 15 - subsequent purchasers, also
claimed ownership by virtue of the Gift Deed and sale deed,
respectively.
THE CIVIL SUITS FILED BETWEEN THE PARTIES.
SPECIAL CIVIL SUIT NO. 399 OF 2008 - PREVISIOUSLY
INSTITUTED SUIT
10. The purchasers filed Special Civil Suit No. 399 of 2008
against Prabhudas Vallabhdas Modi (who later died),
Chellabhai Herjibhai Desai (defendant no. 7 - PoA of
Prabhudas Vallabhdas Modi), and Ashok Prabhudas Modi
(Defendant No. 1 - Donee), wherein the later on, ATS holders
have been joined as party defendants. Whereas, the subsequent
purchaser - petitioner herein also filed an application to be
joined in the suit as co-defendant, which appears to have been
filed on 17th June 2013 but, it is still pending for its
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adjudication.
10.1. The aforesaid suit has been filed by the purchasers,
seeking a declaration and cancellation of the Gift Deed
executed by Prabhudas Modi in favour of his son - Donee
(Ashok Modi). The reliefs, which are prayed for in the
previously instituted suit, can be summarized as under:-
a. The sale deed which was executed by Prabhudas Modi and
his power of attorney jointly in favour of the purchasers by
collecting sale consideration, which registered with the Sub-
Registrar on 04.07.2008 in relation to the suit land, be declared
as complete, true, correct and legal, stand in favour of the
purchasers.
b. The defendants to the suit shall be prohibited from
interfering with the possession of the suit property possessed
by the purchasers and not to disturb their possession by any
means.
c. The Gift Deed, presented on 25.07.2008 and registered on
28.07.2008 with the Sub-Registrar, Ahmedabad (Paldi), which is
subsequent to the sale deed executed in favour of the
purchasers on 04.07.2008, be declared fraudulent, without
consideration, null and void, and executed without any right or
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interest, and consequently, the Sub-registrar, Ahmedabad
(Paldi) may take note of the order of this Court.
SPECIAL CIVIL SUIT NO. 455 OF 2009 - CURRENTLY
WITHDRAWN
11. The Donee had filed Special Civil Suit No. 455 of 2009
against the owner of the suit property, his power of attorney,
one of the legal heirs of the original owner, and against the
purchasers of the suit land. It is the case of the Donee that
once the owner of the suit land (Prabhudas Modi) executed the
Gift Deed dated 28.03.2008 albeit, was registered on
28.07.2008, the power of attorney of the owner of the suit
land had no right, title, or interest to execute the sale deed in
favour of the purchasers, which was registered on 04.07.2008.
According to the case of the Donee, none of the original
defendants have any right, title, or interest in the suit land.
12. It appears that the subsequent purchasers of the suit land
were joined as defendants in the suit. It further appears that
despite there being an objection from the subsequent purchaser
not to permit the Donee to withdraw the suit and to transpose
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the subsequent purchaser as a plaintiff in the suit, the Donee
withdrew the aforesaid suit unconditionally on 15.04.2023,
which was permitted to do so by the Trial Court. The Trial
Court did not accept such a request of subsequent purchaser,
thereby, disposed of the aforesaid suit as withdrawn.
13. The petitioner herein - the subsequent purchaser - has
challenged the order dated 15.04.2023 passed by the Trial
Court by filing Special civil application no.7797 of 2023, which
is pending for its adjudication.
14. The reliefs, which are prayed for in the suit, can be
summarized as under:-
a. The considering facts of the plaint give declaration that
the plaintiff - the Donee is the absolute owner and
possessor of the suit land and as such, the defendants of
the suit, including the purchasers, had no right, title, and
interest in the suit land.
b. The registered sale deed executed on 04.07.2008 by the
power of attorney of the owner of the land in favour of
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the purchasers in relation to the suit land be declared null
and void, illegal, and without any authority to execute
such deed.
c. The defendants to the suit shall be prohibited from
transferring, alienating, creating any right in favour of a
third party and also not to interfere with the possession of
the suit property possessed by the purchasers and not to
disturb their possession by any means.
15. But, as on date, the status of the aforesaid suit would be
as disposed of being withdrawn.
SPECIAL CIVIL SUIT NO. 1100 OF 2011 - PRESENT SUIT
(SUBJECT MATTER OF THE PRESENT WRIT APPLICATION)
16. The ATS holders also filed the suit against the Donee, the
legal heirs of the original owner of the suit land, the PoA, and
the Purchasers, and later on, the subsequent purchasers were
joined in the suit.
17. The suit is basically filed seeking specific performance of
the Agreement to Sell dated 08.07.2008 executed by the ATS
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Holders with the purchasers, and also sought a declaration and
injunction.
18. As referred to hereinabove, during the pendency of the
suit, the subsequent purchasers have been joined in the suit;
their sale deed, executed by the Donee on 29-09-20210 but
registered on 13-05-2013, is challenged in this very suit by
way of an amendment of the suit.
19. The parties to the suit, after submitting their pleadings
and on the framing of issues, as per the direction issued by
this Court, the trial of the suit commenced, whereby the
plaintiffs and defendant nos. 1 to 13 of the suit have already
submitted their oral evidence. Now, the suit is at the stage of
recording of the evidence of the subsequent purchasers, i.e.,
defendant no. 14 - the petitioner, and defendant no. 15 -
respondent no. 15.
20. At that stage, the impugned application under Section 10
of the CPC came to be filed by defendant no. 14 - the
subsequent purchaser below Exh. 353 in the suit, which was
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objected to by the ATS Holders - the plaintiffs.
21. After hearing the parties, the Trial Court rejected the
application filed under Section 10 of CPC vide its order dated
11-04-2025 below Exh. 353 in Special Civil Suit No. 1100 of
2011.
22. Being aggrieved and dissatisfied with the impugned Order
dated 11.04.2025, whereby the application of the petitioner
filed below Exh. 353 under Section 10 of the CPC for a stay of
Special Civil Suit No. 1100 of 2011 came to be rejected, the
Petitioner approaches this Court by way of present writ
application on the grounds that the said order is bad in law
and contrary to settled legal principles.
23. The reliefs, which are prayed for in the present suit, can
be summarized as under:-
a. The defendant no. 8 to 13 (purchaser) on basis of the
Agreement to Sell dated 08.07.2008 executed by them in
favour of plaintiffs (ATS Holders), by accepting balance
sale consideration, be directed to execute registered sale
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deed in relation to suit land in favour of plaintiffs (ATS
Holders) or in favour of any person they wishes, and
defendant no. 1 to 7 become confirming parties to such
sale deed.
b. The execution of sale deed dated 28.09.2010 by
defendant no.1 (Donee) in favour of defendant no. 14 &
15 (subsequent purchaser) having being registered on
13.05.2013 be declared as illegal, null, void, fraudulent,
and bogus, and sought a decree that the subsequent
purchasers be joined as a confirming party in sal deed
order to be registered in favour of the ATS Holders.
c. Further sought a declaration that any agreement entered
into between the Donee and the purchasers, prejudicing
the rights and interests of the ATS Holders, is not binding
on them as they are not empowered to execute such an
agreement. Be declared that the original defendants, inter
se, entered into an agreement in Special Civil Suit Nos.
399 of 2008 and 455 of 2009, are not binding on the ATS
Holders as it is void ab initio.
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d. Seeking declaratory decree that the registered Gift Deed
dated 28.07.2008 executed in favour of defendant no. 1 is
void, got-up, null, and void.
e. The defendants to the suit shall be prohibited from
transferring, alienating and creating any right in favour of
third party and also not to interfere with the possession of
the suit property possessed by the purchasers and not to
disturb their possession by any means.
SPECIAL CIVIL SUIT NO. 377 OF 2022 - CONSENT DECREE
PASSED
24. The suit was filed by two of the purchasers, namely,
Rajesh Nitinbhai Raval and Siraj J. Modan ( respondent nos. 12
and 14 herein in the present writ application ), against the rest
of the purchasers, except Shashikantbhai Vasudevbhai Patel
(Respondent No. 13 in the writ application), the ATS holders,
and the Donee.
25. The suit is filed seeking specific performance against the
ATS Holders, whereby it was prayed that the ATS Holders be
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directed to pay the balance sale consideration, i.e., 9 crores, as
per the ATS dated 08.07.2008 or, alternatively, declare that
the possession of the defendants on 75% of the suit land is
illegal, and thereby, the suit may be decreed by directing the
defendants to return the possession of the suit land, and also
sought a prohibitory injunction.
26. It appears that there was a compromise arrived at
between the parties to the suit before the Hon'ble Supreme
Court of India, which is recorded in its order dated 14.02.2023
passed in Special Leave to Appeal (C) No. 21828 of 2022,
whereby it has been observed that on the basis of the
compromise and settlement arrived at between the parties, the
last portion of order passed the Trial Court on 06.02.2023
would be treated as a decree. Nonetheless, it has been
specifically observed that the said decree would not be binding
on third parties.
27. Thus, a formal decree was passed by the Trial Court on
09.03.2023 in the aforesaid suit. The sum and substance of
such a compromise would be as follows:-
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27.1. The Donee is accepting the registered sale deed
dated 04.07.2008 in favour of the purchasers and agrees
to withdraw his Special Civil Suit No. 455 of 2009 and,
also, would not dispute the ATS dated 08.07.2008
executed in favour of the ATS holders.
27.2. It has been agreed between the purchasers and the
ATS holders, except for one of purchase (respondent no.
13 herein), that the price agreed as per the ATS would be
received from the ATS holders by the purchasers, except
for respondent no. 13 herein, whose share of land and
amount will be excluded, and on receipt of such
consideration, a sale deed will be executed in favour of
the ATS holders and in favour of any person to whom
they desire it to be executed.
27.3. It has been specifically agreed that the purchasers,
except for respondent no. 13, are bound to perform as per
the terms of the ATS dated 08.07.2008 executed by them
in favour of the ATS holders. They accept the possession
of the ATS holders and, in future, they would not raise
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any dispute as regards the ATS, the sale consideration,
and the possession of the suit land.
SPECIAL CIVIL SUIT NO. 121 OF 2023 - PETITIONER -
SUBSEQUENT PURCHASER - PLAINT REJECTED - FIRST
APPEAL PENDING
28. The suit was filed by the subsequent purchasers against
Donee, PoA, purchasers, and ATS Holders, wherein the
following principal reliefs have been prayed for:-
"(A) This Hon'ble Court be pleased to declare that in the
facts and circumstances of the present case, the
Defendants have no right whatsoever to execute any Sale
Deed in the context of subject land either absolutely or
during pendency of various Suit Nos. 399 of 2008, 455 of
2009, 1110 of 2011, 391 of 2013, 298 of 2014 and 574 of
2014 before various Courts;
(B) This Hon'ble Court be pleased to hold and declare that
only the Plaintiffs have right, title and interest in the
subject land;
(C) That this Hon'ble Court be pleased to hold and declare
that the Plaintiffs were in possession of the subject land
and the same has been taken over illegally only on
31.03.2023 by the Defendants, their servants, agents,
assigns, etc. and be further pleased to direct the
Defendants, their servants, agents, assigns, to restore
possession;
(D) This Hon'ble Court be pleased to grant a permanent
injunction restraining the Defendants, their servants,
agents and anybody claiming through them from taking
any action whatsoever or executing any documents, filing
any applications or taking any steps for transferring,
selling, leasing, gifting, alienating or in any other manner
creating third party interests in the subject land or
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encumbering the subject land or parting with possession
thereof in favour of any third party;
(E) This Hon'ble Court be pleased to grant a permanent
injunction restraining Defendant Nos. 2 to 9 from taking
any steps for transferring, selling, leasing, gifting,
alienating or in any other manner creating third party
interests in the subject land or encumbering the subject
land or handing over physical possession of the subject
land in favour of Defendant Nos. 10 and 11 or any person
claiming through them;
(F) This Hon'ble Court be pleased to grant a permanent
injunction restraining the Defendants from raising any
temporary or permanent construction thereon or for
working the land, changing the topography, making
compound walls, digging holes and pits;
(G) The Hon'ble Court may be pleased to award costs of
this Suit to the Plaintiff;
(H) The Hon'ble Court may be pleased to pass such further
and other relief(s) as the nature and circumstances of the
case may require."
28.1. The aforesaid plaint was rejected by the Trial Court as
per Order VII Rule 11 of the CPC on 11.04.2023, against
which First Appeal No. 1850 of 2023 was filed by the
subsequent purchasers, which is claimed to be pending,
wherein an order of status quo has been granted, which is
operating as of date.
SUBMISSION OF PETITIONER - DEFENDANT NO.14 -
SUBSEQUENT PURCHASER
29. Learned Senior Counsel Mr. Mihir Thakore, with Learned
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Senior Counsel Mr. Devan Parikh for the petitioner, would
submit that the impugned order passed by the Trial Court is
contrary to Section 10 of the CPC and requires to be quashed
and set aside.
29.1. Learned Senior Counsel would further submit that despite
drawing the attention of the Trial Court to the fact that the
previously instituted suit, filed by the purchasers against the
Donee and others, being Special Civil Suit 399 of 2008, and
also the one filed by the Donee against the purchasers and
others, being Special Civil Application No.455 of 2009, have a
direct bearing on the issues germane to the present suit, the
Trial Court has not properly appreciated these facts, thereby
committing a jurisdictional error in rejecting the impugned
application.
29.2. Learned Senior Counsel would further submit that the
purchasers have filed Special Civil Suit No. 399 of 2008 and
sought a declaration that the Gift Deed executed by the owner
of the suit land in favour of the Donee is null and void and
have also sought a declaration that their sale deed dated
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04.07.2008 is legal and valid; therefore, the present suit cannot
be proceeded with by the ATS Holders. It is submitted that
when the purchasers' title is not clear, which is a sine qua
non to get specific performance from the purchasers, the suit
filed by the ATS Holders, wherein also the same relief is
sought for seeking a declaration that the Gift Deed executed by
the owner in favour of the Donee be declared null and void,
cannot be proceeded with further, being a subsequent suit, and
requires to be stayed by the Court.
29.3. Learned Senior Counsel would further submit that the
Trial Court has not appreciated the plain language of Section
10 of the CPC, which is a mandatory provision, whereby 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
the parties under whom they claim, litigating under the same
title, where such a suit is pending.
29.4. Learned Senior Counsel would submit that unless and
until the previously instituted suit by the purchaser gets
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decided and the cloud over their title is cleared by a court of
law, till then, the present suit cannot proceed, wherein also
the same issue is raised by the ATS Holders. It is submitted
that the Trial Court has completely lost sight of the crucial
fact that the Gift Deed is already challenged in the previously
instituted suit, i.e., Special Civil Suit No. 399 of 2008, as well
as the present suit, i.e., Special Civil Suit No. 1100 of 2011; as
per Section 10 of the CPC, the subsequent suit is required to
be stayed.
29.5. Learned Senior Counsel would further submit that there
are catena of decisions, which has clarified such a position of
law, and despite clearly stating such fact in the impugned
application, the Trial Court has erroneously rejected the
impugned application on non-existent grounds, thereby,
committed jurisdictional error.
29.6. Learned Senior Counsel would further submit that mere
delay in filing the impugned application would not, ipso facto,
disentitled the petitioner to request the Trial court to stay the
present suit. It is submitted that as per Section 10 of the CPC,
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its mandatory in nature and does not remotely indicate that
such type of application must be filed at the first instance and
not in the midst of the trial. It is respectfully submitted that
when there is a mandatory provision of law, the Trial Court
was required to adhere to it, and on the ground of delay, the
impugned application could not have been rejected.
29.7. Learned Senior Counsel would further submit that, as
such, at the time of taking the oral evidence of the petitioner,
having gone through the documents of the previously instituted
suits and the present suit, she has noticed that the issue
germane in the present suit is directly and substantially in
issue in a previously instituted suit.
29.8. Learned Senior Counsel would further submit that the
parties in both suits are, for all practical purposes, the same.
Although the specific names in the party arrays may differ,
they are all litigating under the same title, which is a key
condition for the applicability of Section 10 of the CPC. It is
submitted that the title of the petitioner to the suit property
originated from the Donee, the recipient of the contested gift.
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Conversely, the plaintiffs in the present suit derive their
alleged rights from the purchasers, who are the plaintiffs in
the previously instituted suit, i.e., Special Civil Suit No. 399 of
2008 filed to get their title clear.
29.9. Learned Senior Counsel would further submit that
although, Special Civil Suit Suit No. 455 of 2009, filed by the
Donee, was withdrawn by him, but such withdrawal is already
challenged before this Court, and the matter is sub-judice,
wherein the petitioner has already prayed for her transposition
from defendant to as co-plaintiff. According to both Learned
Senior Counsel, unless and until the issue germane in the
previously instituted suit can be decided by the Trial Court as
regards the title of the suit land by giving a declaration either
in favour of the Donee or the purchasers, the present suit
requires to be stayed.
29.10. Learned Senior Counsel would further submit that
merely because the nature of the suit may be different, i.e.,
the previously instituted suit is for declaration and the present
suit is for seeking specific performance of the ATS, wherein
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also the Gift Deed executed in favour of the Donee by the
owner of the land is questioned being challenged, in such
circumstances, the previously instituted suit is required to be
first proceeded, and accordingly, the subsequent suit, i.e., the
present suit, can then after be tried by the Trial Court.
29.11. Learned Senior Counsel would further submit that
it is by now well settled that in a previously instituted suit,
any issue, if decided between the parties, would operate as res
judicata in subsequent suit between the same parties; in such a
situation, the subsequent suit is required to be stayed. It is
submitted that the provisions of Section 10 of the CPC would
not entitled any Court to proceed with the trial of any suit in
a case where the issue germane in the suit is directly and
substantially an issue in the previously instituted suit between
the same parties, and if allowed to do so, there would be a
chance of contradictory findings in the two suits having similar
facts. So, to avoid such an anomalous situation, the provision
of Section 10 was drafted and is to be applied. It is further
submitted that in the previously instituted Suits i.e., Special
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Civil Suit Nos. 399 of 2008 and 455 of 2009, the common
issue in relation to the validity of the Gift Deed and the Sale
Deed in question is already germane and has been framed by
the concerned court, whereas in the present suit also (Special
Civil Suit No. 1100 of 2011), the validity of the Gift Deed is
one of the issue, and, in that view of the matter, the
provisions of Section 10 would be applicable to the case on
hand; thereby, the present suit (Special Civil Suit No. 1100 of
2011) is required to be stayed to avoid any conflicting
decisions on the aforesaid issue.
29.12. Learned Senior Counsel would further submit that
need arose to file the impugned application due to the conduct
of the parties, including the Donee, who have settled the
dispute between them including plaintiffs by getting consent
decree in Special Civil Suit No. 377 of 2022 and so also Donee
withdrawn his suit i.e., Special Civil Suit No. 455 of 2009,
which damaged the interest of defendant no. 14. As such, the
plaintiffs, being a party to all these suits, cannot object to
making reference to them while adjudicating the present writ
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application. It is submitted that this Court is required to see
the contours of the issue involved in all these suits which are
filed between the parties. If the present suit is allowed to
continue, the previously instituted Special Civil Suit No. 399 of
2008, and so also, Special Civil Suit No. 455 of 2009, would
be rendered otiose, which would be contrary to the object of
Section 10 of the CPC.
29.13. Learned Senior Counsel would submit that as per
various decisions of the Supreme Court or different High
Courts, including this Court, it has been commonly observed
by various courts, including the Supreme Court, that in a
given case when there are overlapping issues in previously
instituted suit and current suit, but in both suits, the issue is
directly and substantially the same, the subsequent suit is
required to be stayed.
29.14. To buttress their argument, Learned Senior Counsel
would rely upon the following decisions:-
(i) The New Red Bank Tea Co. Pvt. Ltd vs Terai Tea Co.
Pvt. Ltd reported in (2019) 18 SCC 141;
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(ii) Balbir Singh Wasu vs. Lakhbir Singh and Others reported
in (2005) 12 SCC 503;
(iii) Gupte Cardiac Care Centre and Hospital vs. Olympic
Pharma Care (P) Ltd. Reported in (2004) 6 SCC 756;
(iv) Kunulal Krishnalal Trivedi vs. Karanlal Krishnalal Trivedi,
reported in (1997) 3 GLR 1948;
(v) Jai Kishan Garg vs. Randhir Singh, reported in 2024 SCC
Online SC 3935;
(vi) Sagar Shamsher Jung Bahadur Rana and Another vs. The
Union of India and others reported in 1978 SCC OnLine Del
220;
(vii) P.V.Shetty vs. B.S.Giridhar, reported in (1982) 3 SCC
30. Making the above submissions, learned Senior Counsel
requests this Court to allow the present writ application.
SUBMISSION OF RESPONDENT NOS. 1 AND 2 - Plaintiffs.
31. Learned Senior Counsel Mr. P.K. Jani with Learned
Senior Advocate Ms. Trusha Patel, with Learned advocate Mr.
Bhavesh Babariya and Ms. Komal Desai for respondent nos. 1
and 2 respectively, would submit that the impugned
application filed by defendant no. 14 with an ill intention to
derail the trial of the suit, which was already ordered to be
expedited by this Court, and in that view of the matter, the
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Trial Court has correctly rejected impugned application.
31.1. Learned Senior Counsel would further submit that the
timing of filing the impugned application also requires to be
taken note of by this Court, inasmuch as defendant no. 14 was
already joined in the suit before more than 10 years back, has
participated in the trial of the suit, and has cross-examined the
plaintiff and other defendants, and when her turn came to lead
her evidence, i.e. the examination-in-chief, at that stage, not
wants to enter into the witness box, defendant no. 14 filed the
impugned application. Such an attempt on the part of
defendant no. 14 requires to be deprecated, which is in fact
against speedy trial and justice, and this Court should
reprimand defendant no. 14 for trying to come in the way of
the administration of justice.
31.2. Learned Senior Counsel would further submit that
defendant no. 14 is quite aware of all the previously instituted
suits which are referred to in the impugned application and, in
fact, though she filed an application in June 2013 to be joined
in Special Civil Suit No. 399 of 2008, till date, she has not
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bothered to pursue her application; thus, defendant no. 14 is
so far not joined in the previously instituted suit. It is
submitted that the conduct of defendant no. 14 disentitle her
to claim any relief as prayed for in the impugned application.
31.3. Learned Senior Counsel would further submit that even
the ingredients of Section 10 are not made out in the
impugned application, inasmuch as all parties to the present
suit and in the previously instituted suit are not common;
thereby, the impugned application itself is misconceived and
was deliberately filed to derail the outcome of the present suit.
It is submitted that defendant nos. 14 and 15 of the present
suit are not joined in the previous suit, i.e., Special Civil Suit
No. 399 of 2008; thereby, the impugned application was not at
all maintainable and was correctly rejected by the Trial Court.
31.4. Learned Senior Counsel would further submit that the
cause of action in both suits is completely different and has no
direct bearing on each other. It is submitted that the present
suit is filed by the ATS holders seeking specific performance of
the ATS executed by the plaintiffs with the purchasers,
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whereas the previously instituted Special Civil Suit No. 399 of
2008 was filed by the purchasers against the Donee,
challenging the Gift Deed executed by the owner in favour of
the Donee. It is submitted that merely because one of the
prayers made in the both these suits is common, i.e. having
questioned the Gift Deed in question, this would not entitle
defendant no. 14 to claim that the issue germane in the
previously instituted suit and the present suit is directly and
substantially the same.
31.5. Learned Senior Counsel would further submit that the
parties to the previously instituted suit have no objection if the
present suit gets continued, when defendant no. 14, who is not
a party to the previously instituted suit, cannot raise such plea
by filing the impugned application.
31.6. Learned Senior Counsel would further submit that in the
present suit, the plaintiff is required to challenge the Gift Deed
executed by the owner in favour of the Donee due to the fact
that there was a likelihood of settlement between the
purchasers and the Donee, and to get a declaration that any
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settlement, which may take place between the purchasers and
the Donee in their duly instituted suits against each other
would not be binding on the plaintiffs; consequently, plaintiffs
have challenged the Gift Deed in question.
31.7. Learned Senior Counsel would further submit that while
filing the impugned application, there was no reference made
to the consent decree passed by the Trial Court in Special Civil
Suit No. 377 of 2022; then at this stage, such new plea cannot
be allowed to be raised, inasmuch as the impugned application
was filed on 11.09.2024, whereas the consent decree in the
aforesaid suit was passed on 09.03.2023.
31.8. Learned Senior Counsel would further submit that the
petitioner's allegations of collusive actions, including a consent
decree and the withdrawal of another suit, are matters that
must be adjudicated during the trial itself, where evidence can
be presented and examined. These claims cannot serve as a
basis to stay the entire suit.
31.9. Learned Senior Counsel would further submit that,
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considering the language of Section 10 of the CPC, it is
required to be strictly construed, as it is an exception to
Section 9 of the CPC, and defendant no. 14 is required to
fulfill all the conditions stipulated in Section 10 of the CPC by
submitting the impugned application, which she failed to prove
on record.
31.10. Learned Senior Counsel would further submit that
in the present suit, which has been amended, the sale deed
executed by the Donee in favour of defendant nos. 14 and 15
is also challenged; thereby, defendant nos. 14 and 15, having
not been joined in the previously instituted suit, cannot be
permitted to defend the title of their predecessor, i.e., the
Donee.
31.11. Learned Senior Counsel would further submit that
it is an undisputed fact that in none of the previously
instituted Suits, i.e., Special Civil Suit No. 399 of 2008 or
Special Civil Suit No.455 of 2009 (which is now withdrawn),
trial commenced and as no evidence led by any of the parties
to the previously instituted suit. It is submitted that except for
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the framing of issues, it has not progressed further. Whereas,
in the present suit, the trial is virtually going to an end, once
defendant nos. 14 and 15 lead their evidence; it would be
inappropriate to stay the present suit at the instance of
defendant no. 14, who conveniently allowed the present suit to
travel upto the stage of the recording of her evidence. It is
respectfully submitted that, considering the entire set of facts
and circumstances on hand, propriety demands that the present
suit should be allowed to progress further and, in fact,
deciding the present suit early may be helpful to every party
to the present suit.
31.12. Learned Senior Counsel would further submit that
this Court, in its limited jurisdiction, while exercising its power
under Article 227 of the Constitution of India, is not required
to interfere with every order passed by Civil Court in a routine
manner, and as such, it is a settled legal position of law that a
mere error of law while passing order by civil Court would not
be a ground to interfere with the order unless it is so
erroneous, perverse, arbitrary, contrary to the settled position
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of law or without jurisdiction, which is not the case on hand;
thereby, this Court should not interfere with the impugned
order.
31.13. To buttress their arguments, Learned Senior Counsel
would further rely upon the following decisions:-
(i) Usha V. Shahjad Bi @ Sejad reported in 2024(3) Civcc
(ii) Guru Granth Saheb Sthan Meerghat Vanaras Versus Ved
Prakash reported in 2013 (7) SCC 622
(iii) Aspi Jal Versus Khushroo Rustom Dadyburjor reported in
2013 (4) SCC 333
(iv) National Institute of Mental Health and Neuro Sciences
Verusus C. Parameshwara reported in 2005(2) SCC 256
(v) British India Corporation Limited Versus Rashtraco
Freight Carriers reported in 1996 (4) SCC 748
(vi) Mohammad Yunus Versus Mohd Mustaqim reported in
1983(40 SCC 566
(vii) Paras Agri Business Private Limited Vs. Proprietor of M/s.
J.V. Enterprise Tulsidas Mohanbhai Kakkad, reported in 2023
(0) GUJHC 18195 (Para 11, 15, 16)
(viii) Sangam Prints Private Limited Vs. Arman Industries
Private Limited, reported in 2019 (0) JX (Guj) 1127 (Para 32
and 41)
(ix) Shreyas Ratilal Shah Vs. Chistiya Khankah (Dargah)
Kabrastan and Masjid Public, reported in 2013 (3) GLR 2407
(Para 8 to 16)
(x) HDFC Bank Limited Vs. Ashima Limited, reported in
2019 (4) GLR 2649 (Para 19 and 21)
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(xi) Sohal Engineering Works Vs. Rustom Jehangir Vakil Mills
Company Limited, reported in 1981 (0) GLR 491 (Para 13)
31.14. Making the above submissions, Learned Senior
Counsel would request this Court that the petition, being
devoid of merit, requires to be dismissed.
32. No other and further submissions were made by any of
Learned Senior Counsel appearing for the respective parties.
POINTS FOR DETERMINATION
32.1. Whether, in the facts and circumstances of the case, the
ingredients of Section 10 of the CPC made out in the
impugned application filed below Exh. 353 in Special Civil Suit
No. 1100 of 2011 by petitioner - defendant no.14?
32.2. Whether the issue germane in the present suit i.e.,
Special Civil Suit No. 1100 of 2011 is directly and substantially
in issue in a previously instituted suit between the same
parties, or between parties under whom they claim, litigating
under the same title, pending before the same Court or not?
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ANALYSIS
33. Before adverting to the issues germane in the matter, the
following provision of law and the case laws applicable and
helpful to resolve the issues need to be considered.
34. Section 10 of the CPC, in which the impugned
application came to be filed, reads as under:-
"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 1 [India] have jurisdiction to grant the relief
claimed, or in any Court beyond the limits of 1 [India]
established or continued by 2 [the Central Government 3
***.] and having like jurisdiction, or before 4 [the
Supreme Court].
34.1. Explanation.--The pendency of a suit in a foreign
Court does not preclude the Courts in 1 [India] from
trying a suit founded on the same cause of action."
35. To apply the rigors of Section 10 of the CPC, the
following conditions need to be satisfied by the applicant.
(i) There must be two suits instituted between the same
parties, or between the parties under whom they or any of
them claim, litigating under the same title.
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(ii) The matter in issue in the subsequent suit must be directly
and substantially in issue between the same parties, or
between the parties under whom they or any of them claim,
litigating under the same title, in a previously instituted suit.
(iii) The previously instituted suit must be pending in the same
court in which the subsequent suit is brought, or in any other
court in India, or in any court beyond the limits of India
established or continued by the Central Government, or before
the Supreme Court, having the jurisdiction to grant the relief
claimed.
(iv) The court, in which, the previously instituted suit must
have the jurisdiction to grant the relief claimed in the
subsequent suit.
36. There are several decisions cited by the respective learned
senior advocates appearing for the parties on the applicability
of Section 10 of the CPC. Nonetheless, out of which, I would
like to rely upon the following few decisions of Hon'ble
Supreme Court and this Court, wherein the law on the issue of
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the applicability of Section 10 has been clarified/summarized.
37. Firstly, it would be apt to refer to the decision of the
Hon'ble Supreme Court in the case of National Institute of
Mental Health and Neuro Sciences v. C. Parameshwara ,
reported in (2005) 2 SCC 256, wherein it was held in para 8,
thus:-
"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 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. "
(emphasis supplied)
38. Secondly, it would be apt to refer to the decision of the
Hon'ble Supreme Court in the case of Aspi Jal Vs. Kushroo
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Rustom Dadyburjor, reported in (2013) 4 SCC 333, wherein it
was held thus:-
"9. Section 10 of the Code which is relevant for the purpose 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.
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."
From a plain reading of the aforesaid provision, it is evident that
where a suit is instituted in a court to which provisions of the Code
apply, it shall not proceed with the trial of another suit in which the
matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties. For
application of the provisions of Section 10 of the Code, it is
further required that the Court in which the previous suit is
pending is competent to grant the relief claimed. The use of
negative expression in Section 10 i.e. "no court shall proceed
with the trial of any suit" makes the provision mandatory and
the court in which the subsequent suit has been filed is
prohibited from proceeding with the trial of that suit if the
conditions laid down in Section 10 of the Code are satisfied.
The basic purpose and the underlying object of
Section 10 of the Code is to prevent the courts of
concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel
litigations in respect of same cause of action, same
subject-matter and the same relief. This is to pin down
the plaintiff to one litigation so as to avoid the possibility of
contradictory verdicts by two courts in respect of the same
relief and is aimed to protect the defendant from multiplicity of
proceeding.
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10. The view which we have taken finds support from a decision of
this Court in National Institute of Mental Health & Neuro
Sciences v. C. Parameshwara [(2005) 2 SCC 256] in which it has
been held as follows: (SCC pp. 259-60, para 8)
"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 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."
11. 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 a 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
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 the
affirmative, the subsequent suit is not fit to be stayed.
However, we hasten to add then when the matter in
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controversy is the same, it is immaterial what further
relief is claimed in the subsequent suit.
12. As observed earlier, for application of Section 10 of the Code,
the matter in issue in both the suits have to be directly and
substantially in issue in the previous suit but the question is what
"the matter in issue" exactly means? As in the present case, many
of the matters in issue are common, including the issue as to
whether the plaintiffs are entitled to recovery of possession of the
suit premises, but for application of Section 10 of the Code, the
entire subject-matter of the two suits must be the same. This
provision will not apply where a few of the matters in
issue are common and will apply only when the entire
subject-matter in controversy is same. In other
words, the matter in issue is not equivalent to any of
the questions in issue. As stated earlier, the eviction in the
third suit has been sought on the ground of non-user for six months
prior to the institution of that suit. It has also been sought in the
earlier two suits on the same ground of non-user but for a different
period. Though the ground of eviction in the two suits was
similar, the same were based on different causes. The
plaintiffs may or may not be able to establish the ground of
non-user in the earlier two suits, but if they establish the
ground of non-user for a period of six months prior to the
institution of the third suit that may entitle them the decree for
eviction. Therefore, in our opinion, the provisions of Section
10 of the Code is not attracted in the facts and circumstances
of the case.
13. Reference in this connection can be made to a decision of this
Court in Dunlop India Ltd. v. A.A. Rahna [(2011) 5 SCC 778 :
(2011) 3 SCC (Civ) 148] in which it has been held as follows: (SCC
pp. 802-03, para 35)
"35. The arguments of Shri Nariman that the second
set of rent control petitions should have been dismissed
as barred by res judicata because the issue raised
therein was directly and substantially similar to the one
raised in the first set of rent control petitions does not
merit acceptance for the simple reason that while in the
first set of petitions, the respondents had sought eviction
on the ground that the appellant had ceased to occupy
the premises from June 1998, in the second set of
petitions, the period of non-occupation commenced from
September 2001 and continued till the filing of the
eviction petitions. That apart, the evidence produced in
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the first set of petitions was not found acceptable by the
appellate authority because till 2-8-1999, the premises
were found kept open and alive for operation. The
appellate authority also found that in spite of extreme
financial crisis, the management had kept the business
premises open for operation till 1999. In the second
round, the appellant did not adduce any evidence worth
the name to show that the premises were kept open or
used from September 2001 onwards. The Rent
Controller took cognizance of the notice fixed on the
front shutter of the building by A.K. Agarwal on 1-10-
2001 that the Company is a sick industrial company
under the 1985 Act and operation has been suspended
with effect from 1-10-2001; that no activity had been
done in the premises with effect from 1-10-2001 and no
evidence was produced to show attendance of the staff,
payment of salary to the employees, payment of
electricity bills from September 2001 or that any
commercial transaction was done from the suit
premises. It is, thus, evident that even though the
ground of eviction in the two sets of petitions was
similar, the same were based on different causes.
Therefore, the evidence produced by the parties in
the second round was rightly treated as sufficient
by the Rent Control Court and the appellate
authority for recording a finding that the appellant
had ceased to occupy the suit premises
continuously for six months without any reasonable
cause."
(emphasis supplied)
39. Thirdly, the division bench of this Court in the case of
Sangam Prints Private Limited (supra), authored by the Hon'ble
Mr. Justice J.B. Pardiwala (as His Lordship then was) observed
and held thus:-
"31. We are of the view, having regard to the facts of the two suits,
the reliefs prayed for in the two suits and the causes of action
pleaded in the two suits, that the conditions necessary to invoke
Section 10 of the CPC could not be said to be fulfilled.
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32. It is not in dispute that the causes of action in the two suits are
altogether distinct and different. Although the agreement of sale in
both the suits is common, yet that by itself is not sufficient to invoke
Section 10 of the CPC. As held by the Supreme Court in the case
of Aspi Jal (supra), the entire subject matter of the two suits must
be the same. Section 10 of the CPC will not apply where few of the
matters in issue are common and will apply only when the entire
subject matter in controversy is same. In other words, the matter in
issue is not equivalent to any of the questions in issue.
33. The Supreme Court, in British Indian Corporation Limited
(supra), has laid much emphasis on the causes of action pleaded
in the two suits. If the causes of action are entirely different,
even then Section 10 of the CPC will not be applicable. A suit
is always based on a cause of action. A cause of action means,
"every fact, which, if traversed, it would be necessary for the
plaintiff to prove, in order to support his right to a judgment of the
court". In other words, it is a bundle of facts, which taken with the
law applicable to them, gives the plaintiff a right to relief against the
defendant."
(emphasis supplied)
40. Fourthly, a Coordinate Bench of this Court, in the case of
Shreyas Ratilal Shah Versus Chistiya Khankah (Dargah)
Kabrastan & Masjid Public & 1 reported in 2013 (3) GLR 2407;
2013 (3) GLH 169, after going through the previous decision of the
Hon'ble Supreme Court in the case of C. Parameshwara (supra) as
well as other previous decisions of this Court, held thus:
"[11] Thus, following aspects are made crystal clear by the Hon'ble
Supreme Court:
(I) 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.
(II) Conflicting findings on issues which are directly and
substantially in issue in previously instituted Suit are sought to be
avoided.
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(III) It is referable to a Suit institute d in the Civil Court and it cannot
apply to proceedings of other nature instituted under any other
statute.
(IV) The fundamental test to attract Section 10 is, whether on final
decision being reached in the previous Suit, such decision would
operate as resjudicata in the subsequent Suit.
(V) Section 10 applies only in cases where the whole of the subject
matter in both the Suits is identical i.e. all the issues must be
identical
(VI) The words "directly and substantially in issue" are used in
contradistinction to the words "incidentally or collaterally in issue".
(emphasis supplied)
41. Thus, there is a broad proposition of law propounded by
various decisions of the Hon'ble Supreme Court, followed by
this Court, which may be summarized thus:-
(i) That for the application of Section 10 of the CPC, the
matter in issue in the present suit has to be directly and
substantially in issue in the previously instituted suit and the
entire subject matter of the two suits must be the same.
(ii) Section 10 of the CPC will not apply where a few of the
matters in issue are common, but it will apply only when the
entire subject matter in controversy is the same in both suits.
(iii) The 'matter in issue' would not be considered equivalent
to any of the 'questions in issue'.
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(iv) It can be deduced that the words 'directly and
substantially in issue' are used in contradistinction to the
words 'incidentally or collaterally in issue'.
(v) Section 10 of the CPC would apply only if there is an
identity of the matter in issue in both suits, meaning thereby
that the whole of the subject matter in both suits is identical.
(vi) Underlying object of Section 10 of the Code is to prevent
the courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations in
respect of same cause of action, same subject-matter and the
same relief.
42. Keeping the aforesaid in principles in the mind, now,
adverting to the facts of the present case, as referred the facts
of all suits in nutshell herein above, it is an undisputed fact
that the present suit is filed seeking specific performance of an
ATS executed by an ATS-holder with the purchaser and,
thereby, the principal prayer made in the suit is the prayer
seeking specific performance of such ATS. It is true that there
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are other consequential reliefs sought in the suit, including a
declaration that the gift deed in question is null and void.
Whereas, in the previously instituted suit, the declaratory relief
sought for is in relation to the gift deed in question to be
declared null and void, and also for a declaration that the sale
deed executed by the power of attorney of the Owner in
favour of the purchaser is legal and valid.
43. Having analyzed the facts, which are recorded
hereinabove, and so also appreciated the submissions of
learned senior counsels appearing for the respective parties, it
clearly appears that the cause of action of the present suit and
the previously instituted suit are completely different, as such
both suits have been filed on different causes of action,
claiming a different set of reliefs. Of course, one of the reliefs
as claimed in the present suit and the previously instituted
suit, i.e., Special Civil Suit No. 399 of 2008, would be
common, i.e., the challenge to the gift deed in question.
44. So, the question that needs to be examined is as to
whether it can be said having claimed by Defendant No. 14
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that the issue in the previously instituted suit is directly and
substantially in issue in the present suit? In my view, for the
following reasons, it would not be.
44.1. The fact remains that the cause of action to file the
present suit, as mentioned in para 7/7A of the plaint, is that
the purchaser, having executed an ATS in favour of the ATS-
holder, failed to execute the sale deed and tried to damage the
interest of the ATS-holder by colluding with other defendants,
including became a confirming party in the registered sale
deed of subsequent purchaser (including petitioner) executed by
the Donee in favour of the subsequent purchaser on
28.09.2010, presented on 13.05.2013 and certified by the Sub-
Registrar on 18.05.2013.
44.2. So, the cause of action to file the present suit arose
to the ATS Holder due to the non-fulfillment of the obligation
of the purchasers under the ATS. The ATS Holder is required
to prove their readiness and willingness to get the principal
prayer made in the present suit i.e. performance of ATS by
purchasers, and once such prayer will be accepted by the Trial
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Court, the question of the examination of other reliefs will
arise.
44.3. Thus, in view of the aforesaid, the issue directly
and substantially involved in the present suit is the right of the
ATS holder to seek a decree of specific performance of the
ATS.
44.4. Whereas, in the previously instituted suit filed by
the purchaser against the Donee (being Special Civil Suit No.
399 of 2008), which challenged the gift deed in question
executed by the owner in favour of the Donee, whereby sought
a declaration that such gift deed be declared null and void,
and also sought a declaration that the sale deed dated
04.07.2008 executed by the PoA in favour of the purchaser is
to be declared valid in law.
44.5. Thus, in the previously instituted suit, the issue
directly and substantially involved would be the declaratory
reliefs in relation to the gift deed in question and also the sale
deed executed in favour of the purchaser in question.
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44.6. So far as Special Civil Suit No. 455 of 2009, filed
by the Donee against the purchaser challenging the registered
sale deed dated 04.07.2008 executed by the power of attorney
holder in favour of the purchaser, is concerned, the same has
been withdrawn. Although such withdrawal has been
challenged by the petitioner before this Court by way of a writ
application, which is pending as on date, her claim to be
transposed as a plaintiff in the suit is also challenged and is
pending at large before this Court in an independent writ
application.
44.7. Nonetheless, when the impugned application came
to be filed and decided by the Trial Court and is to be decided
by this Court, the aforesaid suit is no longer alive on the file
of the Court; thereby, it cannot be considered as a previously
instituted suit pending to be considered for the applicability of
Section 10 of the CPC in the matter. Further also, in said suit
as well, declaratory reliefs sought for which was just opposite
to what is claimed in previously instituted suit.
44.8. Having referred herein above, it is as such clear
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like as day that cause of action to file previously instituted
suits and present suit, both are different and distinct to each
other. The entire subject matter in controversy is not the same
in any of the suits.
44.9. Furthermore, there are subsequent events, which
have taken place after the filing of all these suits that also
need to be referred to and considered by this Court, in light of
the fact that neither the previously instituted suit, i.e., Special
Civil Suit No. 399 of 2008, nor Special Civil Suit No. 455 of
2009 has progressed any more, inasmuch as none of the
plaintiffs to the aforesaid suits have any inclination to proceed
with the suits. Having so above referred facts, the Donee has
already unconditionally withdrawn Special Civil Suit No. 455
of 2009, thereby giving up his claim to question the legality
and validity of the sale deed executed in favour of the
purchaser and also giving his consent in Special Civil Suit No.
377 of 2022, whereby a consent decree was drawn by the Trial
Court, whereby the Donee has not only accepted the sale deed
executed in favour of the purchaser but also agreed that the
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Donee would not have any dispute and will not raise any
dispute in relation to the ATS executed between the ATS-
holder and the purchaser.
44.10. It has remained undisputed that the petitioner
(Defendant No. 14), though she filed an application to be
joined as a co-defendant in the previously instituted suit i.e.
Special Civil Suit No. 399 of 2008 by filing an application in
June 2013, till date, not taken any steps to get it adjudicated,
and as such, it has remained pending on the file of the
previously instituted suit since last more than 12 years.
44.11. Moreover, as recorded hereinabove, none of the
parties to the said suit has shown their inclination to
commence the trial of the previously instituted suit, though it
is pending in the same court where the present suit is pending,
wherein the trial has already commenced and reached the
stage of recording the oral evidence of Defendants No. 14 and
15, i.e., the subsequent purchasers, who are the last
defendants to lead their evidence in the present suit.
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44.12. In light of the aforesaid peculiar facts and
circumstances, this Court cannot be oblivious of the fact that
Defendant No. 14, for reasons best known to her, is neither
interested to be joined in the previously instituted suit nor
ready to file her oral evidence in the present suit, wherein she
was made party, but to derail the trial of the present suit, at
such a belated stage, the impugned application came to be
filed. The conduct of Defendant No. 14 and the timing of filing
impugned application, especially when the present suit has
travelled a lot, need to be considered by the Court while
adjudicating the impugned application.
44.13. It would be apt to refer to and rely upon the
observation made by the Hon'ble Supreme Court in the case of
Pukhraj D. Jain v. G. Gopalakrishna, reported in (2004) 7 SCC
251, wherein it has been held thus:-
"4. We have heard learned counsel for the parties and have
perused the records. In our opinion, the view taken by the High
Court is wholly erroneous in law and must be set aside. The
proceedings in the trial of a suit have to be conducted in
accordance with provisions of the Code of Civil Procedure. Section
10 CPC no doubt lays down 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
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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. However, mere filing of an application under
Section 10 CPC does not in any manner put an embargo on
the power of the court to examine the merits of the matter. The
object of the section is to prevent courts of concurrent jurisdiction
from simultaneously trying two parallel suits in respect of the same
matter in issue. The section enacts merely a rule of procedure
and a decree passed in contravention thereof is not a nullity. It
is not for a litigant to dictate to the court as to how the
proceedings should be conducted, it is for the court to decide
what will be the best course to be adopted for expeditious
disposal of the case. In a given case the stay of proceedings of
later suit may be necessary in order to avoid multiplicity of
proceedings and harassment of parties. However, where a
subsequently instituted suit can be decided on purely legal points
without taking evidence, it is always open to the court to decide the
relevant issues and not to keep the suit pending which has been
instituted with an oblique motive and to cause harassment to the
other side."
(emphasis supplied)
44.14. What is culled out from the aforesaid
pronouncement that it is not for a litigant to dictate to the
Court as to how the proceedings should be conducted; it is for
the Court to decide what will be the best course to be adopted
for the expeditious disposal of the case.
44.15. Thus, what is observed hereinabove including the
conduct of the petitioner-defendant No.14 would not entitled
her to stall the present suit proceeding by placing reliance
upon Section 10 of CPC. As such, Section 10 of CPC would
only lay down rule of procedure but thereby, it would not be
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vested right in favour of the party to the suit whereby, the
Court feels helplessness to overcome the mischief played by the
party to stall the trial of the suit.
44.16. Even otherwise, view the matter from any angles,
it would suggest that the issue as regards the challenge of the
gift deed in question, and also the sale deed executed in
favour of the purchaser by the PoA of the owner, is not
directly and substantially an issue in the present suit, as it is
filed for seeking specific performance of the ATS. As observed
herein above, the cause of action to file both these suits are
completely different and distinct. Such an issue in the present
suit is an incidental or collateral issue but surely not directly
and substantially in issue, which is the sine qua non to stay
the present suit.
44.17. At this stage, while examining impugned
application, the Court is not concern with entitlement of
plaintiffs to get principle relief as prayed in present suit, as it
would be available subject to clear title of purchaser as
alleged, which according to petitioner, is sine qua none to
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grant such relief.
44.18. Apart from the aforesaid, this Court, within its
limited jurisdiction while exercising its power under Article 227
of the Constitution of India, is not required to interfere with
an order passed by a Civil Court in a routine manner, and as
such, it is a settled legal proposition of law that a mere error
of law would not be a ground to interfere with the order
unless it is so erroneous, perverse, arbitrary, contrary to the
settled position of law, and or without jurisdiction, which is
not the case on hand. As such, the petitioner could not make
out any such fallacy in the impugned judgment/order. Thus,
this Court would not like to interfere with the impugned order,
for reasons as stated hereinabove. [See Sameer Suresh Gupta
TR PA Holder vs. Rahul Kumar Agarwal, reported in (2013) 9
SCC 374 (Para 6 and 7) and Garment Craft v. Prakash Chand
Goel, reported in (2022) 4 SCC 181 (Para 15 and 16)].
44.19. The upshot of the aforesaid observation, discussion,
and reasons, I am in complete agreement with the view taken
by the Trial Court while rejecting the impugned application
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filed under Section 10 of the CPC by Defendant No. 14, and as
such, none of the submissions so canvassed by the learned
senior counsel for the petitioner - Defendant No. 14 has
impressed this Court to interfere with impugned order.
44.20. Before parting, in light of the aforesaid discussion,
I would like to observe that considering the controversy and
dispute germane in both the suits, i.e., Special Civil Suit Nos.
399 of 2009 and 1100 of 2011, wherein the parties to the suit
are also common, except for Defendants No. 14 and 15 of
present suit, who are yet to be joined in the previously
instituted suit, which is pending in the Court, and to avoid
any multiplicity of proceedings between the parties, it would
be desirable to consolidate both suits.
44.21. Such recourse is permissible in law, and in fact,
this Court, while exercising its supervisory jurisdiction under
Article 227 of the Constitution of India, read with its power
under Section 151 of the CPC for the ends of justice between
the parties, can order for the consolidation of the suits.
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44.22. The Division Bench of this Court in Sangam Prints
Private Limited (supra), while rejecting the prayer of staying
the suit, having not found any substance in the application
filed by the party concerned under Section 10 of the CPC, took
such recourse and ordered to consolidate the suits. The
relevant observation made in the aforesaid decision reads as
under:-
"34. The principle that the provisions of Section 10 of the CPC are
mandatory in character, as such, is not in dispute. The question is,
whether the provisions of Section 10 of the CPC denude the courts
of its jurisdiction to follow any other procedure which would serve
the ends of justice.
40. Mr. Majmudar submitted that if this Court is of the view that the
causes of action in the two suits are altogether different, then the
two suits even cannot be ordered to be consolidated. We do not
find any merit in such contention. The very same contention was
canvassed before this Court in the case of Zakinaben D/o Gu-
lamhusen Kamruddin Lokhandwala through POA Mannan Saifibhai
Lokhandwala v. Babubhai Alimohmad Kapadia, reported in AIR
1999 Gujarat 118, wherein a learned Single Judge of this Court,
while negativing the contention, observed as under:
"So far as the last reasoning is concerned, viz. cause of
action being different, this is also not a good reasoning
for refusing consolidation of suits. When the two suits
are filed, on some of the relief claimed, the cause of
action is bound to differ. However, only on this
ground the prayer for consolidation cannot be
refused. The words "in the ends of justice" used in
Section 151, C.P.C. and further words "to prevent
abuse of the process of the Court" in the said section
mean that if it is desirable in the interest of justice to
consolidate the suits and it is further desirable to prevent
abuse of the process of the Court order for consolidation
can be passed. Abuse of the process of the Court can
be prevented by not compelling the parties to adduce
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the same or similar evidence in the two suits twice.
Likewise if the evidence slightly differs and the main
evidence remains the same it would amount to abuse of
the process of the Court to compel the parties to adduce
separate evidence in the two suits. The ends of justice
also required that the interest of the parties should be
kept in mind and it is not only in the interest of justice,
but also in the interest of parties to avoid multiplicity of
evidence and to avoid unnecessary contradiction in the
evidence if the same is recorded after lapse of some
time. Naturally the evidence in the two suits cannot be
simultaneously recorded on one and the same date and
if the evidence in the two suits is recorded on different
dates unnecessary contradictions in examinationin-chief
and cross-examination are bound to occur."
41. In the overall view of the matter, we have reached to the
conclusion that the court below committed no error, not to speak of
any error of law, in rejecting the application Exh.80 warranting any
interference at our end in exercise of our supervisory jurisdiction
under Article 227 of the Constitution of India.
42. We, however, in the wake of the aforesaid discussion, would
like to pass an order for consolidation of the two suits. We take
notice of the fact that the subsequent suit, i.e. the Commercial Civil
Suit No.110 of 2016 is pending as on date in the court of the
learned Judge, Commercial Court, Vadodara, whereas the Regular
Civil Suit instituted first in point of time being Regular Civil Suit
No.202 of 2011 is pending in the court of the Principal Senior Civil
Judge, Surat
43. We order transfer of the Regular Civil Suit No.202 of 2011 from
the court of the Principal Senior Civil Judge, Surat, to the court of
the learned Judge, Commercial Court, Vadodara. On the Regular
Civil Suit No.202 of 2011 being transferred to the Commercial
Court at Vadodara, the same was thereafter be consolidated. Both
the suits shall be consolidated for the purpose of trial. The learned
Judge, Commercial Court, Vadodara, may frame consolidated
issues taking into consideration the pleadings in both the cases
and thereafter sat down the cases for consolidated trial."
(emphasis supplied)
CONCLUSION
45. In light of the aforesaid, the ingredients of Section 10 of
the CPC are not made out by Defendant No. 14 in her
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impugned application filed below Exh. 353 in Special Civil Suit
No. 1100 of 2011, and it was, as such, filed belatedly just to
derail the trial of the present suit.
45.1. Having so observed hereinabove, in clear terms, it can be
held that the issue germane in Special Civil Suit No. 1100 of
2011 is not directly and substantially in issue in the previously
instituted suit between the same parties, or between parties
under whom they or any of them claim, litigating under the
same title, pending in the same Court.
45.2. Considering the peculiar facts and circumstances of the
present case and for the foregoing reasons, I would like to
pass an order of consolidation of both suits, i.e., Special Civil
Suit No. 1100 of 2011 and Special Civil Suit No. 399 of 2008,
which are pending before the same Court i.e. Principal Senior
Civil Judge, Ahmedabad (Rural).
45.3. The Trial Court shall consolidate the suits accordingly
and proceed with trial of the suits in accordance with the law.
46. It is expected that the parties to the suits will extend
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their cooperation and support to the Trial Court for the
expeditious adjudication of the suits, and as such, in the past,
this Court has already directed the Trial Court to complete the
adjudication of the present suit at the earliest.
47. With the aforesaid conclusion, as such, I do not find any
merit in the present writ application, inasmuch as there is
neither any illegality, irregularity, nor any gross error of law
and or any jurisdictional error committed by the Trial Court
while rejecting the impugned application filed below Exh. 353
in Special Civil Suit No. 1100 of 2011. Consequently, the
impugned order is hereby confirmed. Rule is discharged, albeit
subject to the aforesaid directions. No order as to costs.
Sd/-
(MAULIK J.SHELAT,J)
MOHD MONIS
