SRI S. SHIVASHANKARA, ADV., AND
SRI S. SUBRAMANYA, ADV., FOR R-1 TO R-5)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DTD:25.07.2018 PASSED BY THE XLIV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BANGALORE IN O.S.NO.6942/2011 (ANNEXURE-
A) AND DISMISSED THE APPLICATION FILED BY THE R-6 UNDER
SECTION 10 READ WITH SECTION 151 OF CODE OF CIVIL
PROCEDURE, 1908 (ANNEXURE-P)
THIS PETITION, HAVING BEEN RESEREVED FOR ORDERS ON
19.11.2025, COMING ON FOR PRONOUNCEMENT THIS DAY,
COURT MADE THE FOLLOWING:
2. Heard the learned counsel for the parties.
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3. O.S.No.6942/2011 was filed before the jurisdictional Civil
Court at Bengaluru by the petitioner herein with a prayer to
direct the defendants jointly and severally to pay a sum of
Rs.2,33,17,790/- with current and future interest at 18% p.a.
from the date of suit till the date of realisation. The contesting
defendants have filed written statement and opposed the suit
claim. IA No.5 was filed by defendant No.6 in
O.S.No.6942/2011 under Section 10 read with Section 151 of
CPC, with a prayer to stay the further proceedings in
O.S.No.6942/2011 till the disposal of RFA No.1025/2014
pending before this Court. The said application was opposed by
the petitioner/plaintiff by filing objections. The Trial Court vide
the order impugned has allowed IA No.5 and being aggrieved
by the same, petitioner/plaintiff is before this Court.
4. Learned counsel for the petitioner having reiterated the
grounds urged in the petition submits that issues raised in
O.S.No.6942/2011 and in O.S.No.3290/2009 are totally
different. The Trial Court has failed to appreciate this aspect of
the matter. Petitioner had earlier filed an application to club the
suits in O.S.No.3290/2009 and O.S.No.6942/2011 and the said
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application was opposed by defendant No.6 and consequently,
the application was rejected. Since the application filed by the
petitioner herein to club both the suits was rejected, there is no
justification in now staying the further proceedings in
O.S.No.6942/2011 at the request of defendant No.6, who had
earlier opposed clubbing of the two cases. Though both the
suits are for recovery of money, the cause of action in both the
suits are different. The application filed under Section 10 of CPC
is after disposal of O.S.No.3290/2009 and therefore, the Trial
Court ought not to have allowed the same. In support of his
arguments, he has placed reliance on the judgment of the
Hon'ble Supreme Court in the case of Prahlad Singh vs. Col.
Sukhdev Singh - (1987) 1 SCC 727.
5. He further submits that similar application was earlier
filed on behalf of defendant Nos.1 to 5, which was rejected by
the Trial Court on 08.08.2013. The principle of res judicata
would apply even in respect of orders passed in a pending
proceedings and therefore, the Trial Court was not justified in
passing the order impugned. In support of his contentions, he
has placed reliance on the judgment of this Court in the case of
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Gokulam Farms and Estates Pvt. Ltd. & Another vs.
Muneer Pasha - 2007 SCC OnLine Kar 810.
6. Per contra, learned counsel for respondent
No.6/defendant No.6 has argued in support of the impugned
order. She submits that issue Nos.2 and 4 in O.S.No.6942/2011
and additional issue No.4 in O.S.No.3290/2009 are one and the
same. Challenging the finding recorded on issue No.4 in
O.S.No.3290/2009, the parties are before this Court in RFA
No.1025/2014 and RFA No.1067/2014, which are pending
consideration. The appeal is continuation of the suit and
Section 10 of CPC is applicable even at the appeal stage. She
submits that a finding has been recorded in the earlier suit that
there was no collusion between the plaintiff and defendant No.3
in O.S.No.3290/2009. She submits that the earlier application
filed on behalf of defendant Nos.1 to 5 was rejected at the
stage when evidence was being recorded on the ground that
there is no bar for recording evidence. At that stage, no finding
was recorded in O.S.No.3290/2009 with regard to additional
issue No.4. Now, there is a change in circumstance and since a
finding is already recorded in O.S.No.3290/2009 on the
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additional issue, which is questioned before this Court in RFA
No.1067/2014, the Trial Court was justified in passing the order
impugned. In support of her arguments, she has placed
reliance on the judgment of the Hon'ble Supreme Court in the
case of Arjun Singh vs. Mohindra Kumar and Others -
(1963) SCC OnLine SC 43.
7. Learned counsel for respondent Nos.1 to 5 has also
argued in support of the order impugned and submits that
object of Section 10 of CPC is to avoid parallel trial on the same
issue to avoid conflicting findings on issues which are directly or
indirectly in issue in the earlier suit. The principle of res
judicata is applicable while considering application under
Section 10 of CPC. In support of his arguments, he has placed
reliance on the judgment of the Hon'ble Supreme Court in the
following cases:-
1. National Institute of Mental Health & Neuro
Sciences vs. C. Parameshwara - (2005) 2
SCC 256.
2. V. Rajeshwari (Smt) vs. T. C. Saravanabava -
(2004) 1 SCC 551.
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8. O.S.No.3290/2009 was filed by respondent No.1 herein
and in the said suit, plaintiff in the present suit was arrayed as
defendant No.1 and its directors were arrayed as defendant
Nos.2 & 3. O.S.No.3290/2009 was filed for recovery of
Rs.1,40,00,000/- with interest and also to declare the order of
the Company Law Board, Chennai in Company Application
No.13/2009 filed in Company Petition No.494/2008 was not
binding on the plaintiff. According to the plaintiff in
O.S.No.3290/2009, defendant Nos.2 and 3 had colluded with
each other to defeat the claim of the plaintiff and therefore,
had obtained an order from Company Law Board, wherein
defendant No.3 was directed to hand over possession of the
northern block of the hotel premises to defendant Nos.1 and 2.
On the other hand, defendant Nos.1 and 2 had filed a written
statement contending that plaintiff and defendant No.3 had
colluded with each other and though the plaintiff had not
actually carried out the work as per the Work Order dated
15.07.2008, suit was filed claiming payment of money in
respect of the work which was not actually done. Based on the
rival pleadings in O.S.No.3290/2009, the Trial Court had
initially framed seven issues and subsequently, an additional
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issue was also framed. The issues framed in
O.S.No.3290/2009, reads as follows:-
"1. Whether the plaintiff proves that the 1st
defendant company entrusted the renovation work
of the schedule property by issuing work order
dated 15.07.2008 for a total sum of Rs.
1,60,00,000/- as contended?
2. Whether the plaintiff further proves till date the
defendants have paid a sum of Rs.20,00,000/-only
though he almost completed major portion of
renovation work?
3. Whether the Plaintiff proves that the 1st
defendant in collusion with 2nd and 3rd defendant
obtained orders of company law board to deceive
the Plaintiff's dues?
4. Is the Plaintiff entitled to decree for a sum of Rs.
1,40,00,000/- as prayed for?
5. Is the Plaintiff entitled to a declaration that the
order of company law board is not binding on him?
6. Whether the plaintiff is entitled to order of
injunction as sought for?
7. What decree or order?
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Addl.Issue:
1. Whether the 1st and 2nd defendants prove that
the plaintiff has not actually carried out the work as
per the work order dtd.15-7-2008 and same is the
outcome of collusion between the plaintiff and 3rd
defendant?"
9. The additional issue framed in O.S.No.3290/2009 has
been answered in the negative and the suit was partly decreed
and the defendants were directed to pay a sum of Rs.1 crore to
the plaintiff with future interest at the rate of 6% p.a. from the
rate of suit till realisation. Assailing the judgment and decree
passed in O.S.No.3290/2009, plaintiff in the said suit has filed
RFA No.1067/2014 and defendant Nos.1 & 2 in the said suit
have filed RFA No.1025/2014, which are pending consideration
before this Court.
10. O.S.No.6942/2011 is filed by defendant No.1 in
O.S.No.3290/2009 and in the said suit, plaintiff in
O.S.No.3290/2009 is arrayed as defendant No.1 and defendant
No.3 in O.S.No.3290/2009 is arrayed as defendant No.6.
O.S.No.6942/2011 is filed alleging that inspite of the order
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dated 05.05.2009 passed by the Company Law Board, Chennai,
in Company Petition No.494/2008 directing the parties to
reopen the northern block of the Hotel premises owned by the
plaintiff company, defendant No.6 in collusion with defendant
No.1 had not deliberately handed over the possession of the
northern block of the hotel premises and thereby, caused loss
to the plaintiff company and accordingly, a decree was sought
directing the defendants to pay a sum of Rs.2,33,17,790/ with
interest at 18% p.a. The contesting defendants have filed
separate written statement in the said suit and based on the
rival pleadings, the Trial Court in O.S.No.6942/2011 has
framed as many as 10 issues. Issue Nos.2 & 4 framed in OS
No.6942/2011 reads as follows:-
"2. Whether the plaintiff further proves defendant
No.1 and 6 colluded together to defeat the order of
the company law board, dated:5-5-2009 filed
O.S.No.3290/09 on the file of City Civil Court,
Bangalore?
3. xxx
4. Whether the plaintiff further proves that the
defendant No.1 illegally had squatted in the North
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Block premises for the period between 5.5.2009 to
6.10.2010 and the prevented the plaintiff company
to re-open and carry on the lawful business in 60
rooms of the North Block Hotel?"
11. Petitioner had filed an application in O.S.No.6942/2011
under Section 151 of CPC, on 04.07.2012, with a prayer to club
O.S.No.6942/2011 with O.S.No.3290/2009 and conduct a
common trial in both the suits. The said application was
opposed by the respondents herein, who are defendants in
O.S.No.6942/2011. The Trial Court by order dated 01.07.2013,
had rejected the application filed on behalf of the petitioner
herein to club both the suits, with an observation that evidence
in both the suits are required to be recorded separately and the
cause of action to both the suits are different. It was also
observed that since the suits are pending before the same
Court, the question of rendering conflicting judgments does not
arise.
12. It is relevant to note here that defendant Nos.1 to 5
herein had earlier filed an application under Section 151 of CPC
with a prayer to stay further proceedings in O.S.No.6942/2011,
contending that issues framed in both the suits are
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substantially the same and O.S.No.6942/2011 being the
subsequent suit, further proceedings in the said suit is required
to be stayed. The said application was opposed by the
petitioner herein, who is the plaintiff in O.S.No.6942/2011. The
Trial Court by order dated 08.08.2013 had rejected the said
application. The said order has attained finality.
13. The Hon'ble Supreme Court in the case of Satyadhyan
Ghosal and Others vs. Deorajin Debi (Smt) and Another -
AIR 1960 SC 941, has observed in paragraph Nos.7 and 8 as
follows:-
"7. The principle of res judicata is based on
the need of giving a finality to judicial decisions.
What it says is that once a res is judicata, it shall
not be adjudged again. Primarily it applies as
between past litigation and future litigation. When a
matter -- whether on a question of fact or a
question of law -- has been decided between two
parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a
higher court or because the appeal was dismissed,
or no appeal lies, neither party will be allowed in a
future suit or proceeding between the same parties
to canvass the matter again. This principle of res
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judicata is embodied in relation to suits in Section
11 of the Code of Civil Procedure; but even where
Section 11 does not apply, the principle of res
judicata has been applied by courts for the purpose
of achieving finality in litigation. The result of this is
that the original court as well as any higher court
must in any future litigation proceed on the basis
that the previous decision was correct.
8. The principle of res judicata applies also
as between two stages in the same litigation to this
extent that a court, whether the trial court or a
higher court having at an earlier stage decided a
matter in one way will not allow the parties to re-
agitate the matter again at a subsequent stage of
the same proceedings..."
(emphasis supplied)
14. In the case of Arjun Singh (supra), the Hon'ble
Supreme Court in paragraph No.12 has observed as follows:-
"12. ...Similarly, as stated already, though
Section 11 of the Civil Procedure Code clearly
contemplates the existence of two suits and the
findings in the first being res judicata in the later
suit it is well established that the principle
underlying it is equally applicable to the case of
decisions rendered at successive stages of the
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same suit or proceeding. But where the principle of
res judicata is invoked in the case of the different
stages of proceedings in the same suit, the nature
of the proceedings, scope of the enquiry which the
adjectival law provides for the decision being
reached, as well as the specific provisions made on
matters touching such decision are some of the
material and relevant factors to be considered
before the principle is held applicable..."
15. In view of the observations made by the Hon'ble Supreme
Court in the case of Satyadhyan Ghosal (supra) and in the case
of Arjun Singh (supra), since the earlier application seeking the
very same relief, filed on behalf of defendant Nos.1 to 5 was
dismissed by the Trial Court and the said order having attained
finality, in my considered opinion, the Trial Court was not
justified in passing the order impugned on the application of
defendant No.6.
16. The Courts while rendering judgments or passing interim
orders should maintain consistency. Judicial discipline and
propriety largely depends on such consistency and the purpose
and object behind the same is to prevent discrimination and
arbitrariness. Otherwise, there is scope of being accused of
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being partial, unfair and discriminatory. A judicial officer may
have a different view on a point for consideration, but on the
same point in the same proceeding if an order is already
passed earlier, he is bound to maintain consistency. A judicial
officer may err and pass illegal orders, but he should not pass
inconsistent orders which would undermine the faith of general
public in the institution.
17. The Trial Court has held that the earlier application
seeking similar relief was filed by defendant Nos.1 to 5 whereas
the present application is filed by defendant No.6 and
therefore, second application can be maintained. The said
approach of the Trial Court, in my considered opinion, is bad in
law. The finding recorded on the earlier application filed seeking
similar relief is binding on all the parties to the suit and it
cannot be said otherwise, unless the relief sought for in the
application is privy to the party making such an application, if
not, any order made during the course of proceedings of the
suit, which is general in nature, shall be binding on all the
parties to the suit.
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18. In the case of National Institute of Mental Health &
Neuro Sciences (supra), the Hon'ble Supreme Court in
paragraph No.8 has observed as follows:-
"8. The object underlying Section 10 is to
prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of
the same matter in issue. The object underlying
Section 10 is to avoid two parallel trials on the
same issue by two courts and to avoid recording of
conflicting findings on issues which are directly and
substantially in issue in previously instituted suit.
The language of Section 10 suggests that it is
referable to a suit instituted in the civil court and it
cannot apply to proceedings of other nature
instituted under any other statute. The object of
Section 10 is to prevent courts of concurrent
jurisdiction from simultaneously trying two parallel
suits between the same parties in respect of the
same matter in issue. The fundamental test to
attract Section 10 is, whether on final decision
being reached in the previous suit, such decision
would operate as res judicata in the subsequent
suit. Section 10 applies only in cases where the
whole of the subject-matter in both the suits is
identical. The key words in Section 10 are "the
matter in issue is directly and substantially in issue"
in the previous instituted suit. The words "directly
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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."
19. Therefore, it is very clear that the fundamental test to
attract Section 10 of CPC 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. In the present case, the whole of the subject matter
in both the suits are not identical. The additional issue framed
in O.S.No.3290/2009 and issue Nos.2 and 4 framed in
O.S.No.6942/2011, may have something in common but
substantially, the said issues are different. The only factor that
is common in the additional issue framed in O.S.No.3290/2009
and in the issue Nos.2 and 4 framed in O.S.No.6942/2011 is
about collusion between defendant Nos.1 and 6 in
O.S.No.6942/2011, who are the plaintiff and defendant No.3
respectively in O.S.No.3290/2009. Except the same, there is
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nothing common in the aforesaid issues. The relief sought for
recovery of money in the earlier suit and the relief sought for
recovery of money in the second suit are for totally different
period. In addition to the same, it is necessary to note here
that there is already a finding recorded on the additional issue
framed in O.S.No.3290/2009.
20. It is true that Section 10 of CPC is applicable even after
disposal of the earlier suit, provided the judgment and decree
passed in the earlier suit is assailed in appeal. However, if it is
found that issues framed in the subsequent suit, was not
directly or substantially in issue in the earlier suit, then Section
10 of CPC does not get attracted. The Trial Court has failed to
appreciate this aspect of the matter.
21. Additional Issue in O.S.No.3290/2009 was about the
genuineness in executing the work order dated 15.07.2008,
since it was alleged that plaintiff and defendant no.3 in the said
suit were in collusion and the said collusion was regarding
execution of the work order. The alleged collusion in Issue no.2
in O.S.No.6942/2011 is totally different. Even Issue no.4 in
O.S.No.6942/2011 is totally different from the Addl. Issue
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framed in O.S.No.3290/2009. Under the circumstances, I am of
the opinion that the Trial Court was not at all justified in
passing the order impugned and therefore, the said order
cannot be sustained. Accordingly, the following order:
22. The Writ Petition is allowed. The impugned order dated
25.07.2018 passed on IA No.5 in O.S.No.6942/2011 by the
Court of XLIV Addl. City Civil and Sessions Judge, Bengaluru, is
set-aside. Consequently, the prayer made in IA No.5 is
rejected.
Sd/-
(S VISHWAJITH SHETTY)
JUDGE
DN
List No.: 1 Sl No.: 72
