Jammu & Kashmir High Court - Srinagar Bench

Nazir Ahmad Malik vs Rehana Begum And Another on 4 June, 2021

                     HIGH COURT OF JAMMU AND KASHMIR
                                AT SRINAGAR
                                                    Reserved on     20.05.2021
                                                    Pronounced on   04.06.2021

                                                               CR No. 10/2021


Nazir Ahmad Malik                                      ...Petitioner/Applicant(s)


               Through :-              Mr. A. M. Dar, Senior Advocate with
                                       Ms. Bhat Shafi, Advocate

                     v/s
                      <




Rehana Begum and another
        't
                                                              .....Respondent (s)

               Through :-              Mr. Asif Ahmad Bhat, Advocate


CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                        JUDGMENT

1. The petitioner is aggrieved of order dated 25.03.2021 passed by the court

of Civil Judge (Second Division Pattan) (hereinafter to be referred as the

trial court) by virtue of which the application filed by the petitioner for

staying the proceedings of the suit filed by the respondent No. 1, has been

dismissed.

2. The instant revision petition has been filed by the petitioner inter alia on

the following grounds:

(a) that the learned trial court has wrongly dismissed the application filed

under section 10 of the Code of Civil Procedure (for short the Code) as the

matter in issue in the subsequent suit is similar to that in the suit previously

instituted by the petitioner as the subject matter of both the suits pertains to

the shop and the decision in the suit filed by the petitioner would operate

res judicata in the subsequent suit.

(b) that the learned trial court has wrongly dismissed the application in a

mechanical manner as the relief claimed by the respondent No. 1 though

pertaining to the same shop, was not capable being granted as she had

claimed the relief of declaration without there being any documentary

evidence in support thereof.

3. Before this Court adverts to the facts necessary for the disposal of the

present petition, it is necessary to observe that the petitioner has wrongly

mentioned the title of the revision petition as in a suit filed by the

respondent No. 1, the respondent No. 2 has never been a party but the sons

of the petitioner are the parties in the said suit, however, the said defect in

title may not have material fact upon the determination of the present

controversy as the dispute is primarily between the petitioner and

respondent No. 1.

4. Briefly stated, the petitioner had filed a suit for permanent prohibitory

injunction against the respondents whereby he had sought a relief of

permanent prohibitory injunction restraining the respondents from causing

any sort of interference with the peaceful possession and ownership of the

petitioner over the suit property and also from trying to dispossess the

petitioner from the suit property. Simultaneously, during the pendency of

the suit filed by the petitioner, respondent No. 1 also filed a suit against the

petitioner and his sons whereby she prayed for issuance of a decree of

declaration in her favour as the owner of the suit property against the

defendants therein including the petitioner and further decree of permanent

prohibitory injunction was also sought for restraining the defendants

therein from causing any interference with the peaceful possession of

respondent No. 1 over the suit property. Needless to say in both the suits,

the subject matter of the dispute is the shop.

5. The suit for permanent prohibitory injunction was filed by the petitioner on

the ground that there were two agreements between the parties by virtue of

which the respondent No. 1 would purchase one shop of the complex and

vis a vis land and respondent No. 2 shall sell some land to the

plaintiff/petitioner. The said agreement was not adhered to by the

defendants and subsequently, some settlement was arrived at between the

parties. The petitioner apprehending interference at the hands of

respondents with his possession qua the suit shop, filed the suit for

permanent prohibitory injunction. After the filing of the said suit, it is

claimed by the petitioner that the petitioner was forcibly dispossessed from

the suit shop and, as such, he not only filed an application for maintenance

of status quo ante but also lodged an FIR against the respondents. The

respondent No. 1 thereafter filed a suit for permanent prohibitory injunction

with regard to the same shop on the basis of agreement to sell. Thereafter

the petitioner herein filed an application under section 10 of the Code for

staying the proceedings of the subsequent suit filed by the respondent No. 1

against the petitioner on the ground that the subject matter of the parties in

the suit are the same and the relief claimed by the respondent No. 1 against

the petitioner and his sons is also of an identical nature and further that the

subject matter of the present suit is directly and substantially in issue in the

previously instituted suit filed by the petitioner. The said application was

dismissed by the learned trial court vide order dated 25.03.2021 and the

learned trial court in its wisdom thought it proper to consolidate both the

suits.

6. Mr. Dar, learned senior counsel appearing for the petitioner has vehemently

argued that the matter in issue in the subsequent suit filed by the respondent

No. 1 is directly and substantially same between the same parties in the

earlier suit filed by the petitioner No. 1. He further argued that the relief

claimed by the respondent No. 1 pertaining to the same shop in question is

not capable of being granted as she has claimed a relief of declaration of

the said shop without there being any deed of conveyance or sale deed and

the respondent has been banking upon the invalid agreement to sell

regarding which the respondent was supposed to file a suit for specific

performance of contract.

7. Per contra, Mr. Asif Ahmed Bhat, learned counsel argued that the revision

petition is not maintainable because if the revision petition is allowed, it

would not result into the final disposal of the suit. He further submitted that

the matter in issue in the suit filed by the respondent No. 1 is not similar as

that in the earlier suit filed by the petitioner, as the respondent No. 1 has

filed the suit for declaration along with permanent peremptory injunction

whereas the suit filed by the petitioner is only for permanent peremptory

injunction. He further submitted that the Ld. trial Court has rightly come to

the conclusion that in both the suits, the plaintiffs have projected different

causes for redressal of their grievances and as such has rightly dismissed

the application filed under section 10 of the civil procedure code.

8. Mr. Dar learned senior counsel, in rebuttal to the preliminary objection,

submitted that assuming the revision petition is not maintainable, even then

this is a fit case in which this Court can show indulgence by invoking the

supervisory jurisdiction under article 227 of the Constitution of India.

9. Heard and perused the record.

10. The preliminary objection raised by the respondent is with regard to the

maintainability of the revision petition. The application was filed by the

petitioner under section 10 of civil procedure code by virtue of which, he

has sought the staying of the proceedings of the subsequent suit filed by the

respondent No. 1. Aggrieved of the dismissal of the said application, the

present revision petition has been filed. Proviso appended to the section

115 of the civil procedure code provides that the High Court shall not vary

or reverse any order made or any order deciding an issue in the course of

the suit or other proceedings except where the order, if it had been made in

favour of the party applying for revision, would have finally disposed of

the suit or other proceedings. The bar as contained in the proviso is

applicable in the instant case because if the application filed by the

petitioner under section 10 of the civil procedure code had been allowed, it

would have resulted into the staying of the proceedings of the subsequent

suit filed by the respondent No: 1 only but would not have resulted in the

final disposal of the suit filed by her. As such, this revision petition is

against the order of rejection of application under section 10 of the civil

procedure code is not maintainable.

11. Now this Court would examine as to whether this is a fit case that warrants

indulgence of this Court under article 227 of the Constitution of India.

Section 10 of the civil procedure code provides 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 the parties under whom they or any one of them claim,

litigating. Thus it is to be seen as to whether the matter in issue in the

subsequent suit filed by the respondent is directly and substantially in issue

in a suit filed by the petitioner. The words "matter in issue" has been

considered by the Apex court in case titled Aspi Jal v. Khushroo Rustom

Dadyburjor, reported in (2013) 4 SCC 333 and the relevant para is

reproduces as under:

"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."

12. The test for applicability of section 10 of civil procedure code is that the

entire subject matter of the two suits must be same and then only the

decision in the earlier suit can operate as res judicata in the subsequent suit.

The earlier suit filed by the petitioner is for injunction in which the issue

with regard to the title may or may not arise depending upon the filing of

the written statement, as the same is yet to be filed. Whereas in the

subsequent suit filed by the respondent No. 1 the plaintiff is claiming to be

the owner of the property and has claimed to be in possession of the suit

property on the basis of agreement to sell. Though some of the issues may

overlap in both the suits but the entire subject matter in controversy is not

the same in both the suits. More so, Whether the decision in the earlier suit

would operate as res judicata in the subsequent filed by respondent No:1 or

not cannot be determined with certainty at this stage as such the Ld. trial

Court has rightly consolidated both the suits as it would sub-serve the

purpose of saving cost, time and effort. Hon'ble Apex Court in Prem Lala

Nahata v. Chandi Prasad Sikaria, reported in (2007) 2 SCC 551 has

observed as under:

"18. It cannot be disputed that the court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or causes pending in the court and it appears to the court that some common question of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason it is desirable to make an order consolidating the suits. (See Halsbury's Laws of England, Vol. 37, para 69.) If

there is power in the court to consolidate different suits on the basis that it should be desirable to make an order consolidating them or on the basis that some common questions of law or fact arise for decision in them, it cannot certainly be postulated that the trying of a suit defective for misjoinder of parties or causes of action is something that is barred by law. The power to consolidate recognized in the court obviously gives rise to the position that mere misjoinder of parties or causes of action is not something that creates an obstruction even at the threshold for the entertaining of the suit."

13. The contention of Mr. Dar that the decree of declaration cannot be granted in

absence of any documentary evidence so the subsequent suit is in essence a

suit for injunction therefore the same is required to be stayed is also not

sustainable. If that is the case, then the petitioner can file the written

statement and seek adjudication of the said objection. In Pukhraj D. Jain

v. G. Gopalakrishna, reported in (2004) 7 SCC 251, Hon'ble Apex Court

has held as under:

"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 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."

14 Hon'ble Apex court in case titled "Shalini Shyam Shetty v. Rajendra

Shankar Patil" reported in 2010 (8) SCC 329 has held that the power of

superintendence cannot be exercised merely to correct the errors of law or

fact or just because another view, other than taken by the subordinate court

is also a possible view. Further the said power can be exercised when there

is patent perversity in the orders of the subordinate court or where there has

been gross and manifest failure of justice. As the learned trial Court has

consolidated both the suits and the petitioner is well within his right to

oppose the suit filed by the respondent No. 1 so it cannot be said that the

order impugned has occasioned a failure of justice to the petitioner. No

fault can be found with the course by the learned trial Court in

consolidating both the suits as such this Court is of the considered opinion