Chandroth Ponnambath Harifa vs Makkada Preethi
2021 Latest Caselaw 15304 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
               THE HONOURABLE MRS. JUSTICE M.R.ANITHA
      THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
                         OP(C) NO. 4 OF 2016
          OS 810/2010 OF I ADDITIONAL SUB COURT, KOZHIKODE


PETITIONER/PETITIONER/DEFENDANT

           CHANDROTH PONNAMBATH HARIFA
           D/O.MOIDU HAJI, HOUSE NO.5/2264,
           P.O.ASOKAPURAM,KALATHINKUNNU AMSOM DESOM, KOZHIKODE.
           BY ADVS.
           SRI.K.M.FIROZ
           SRI.S.KANNAN
           SMT.M.SHAJNA
           SMT.UMMUL FIDA


RESPONDENT/RESPONDENT/PLAINTIFF

           MAKKADA PREETHI
           W/O.SANTHOSH KUMAR, KUZHIPPALLI HOUSE,
           P.O.FEROKE,CHERUVANNUR AMSOM DESOM, KOZHIKODE - 673 631.
           BY ADVS.
           SRI.V.T.MADHAVANUNNI
           SRI.V.A.SATHEESH
           SRI.M.S.VINEETH



     THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 14.7.2021, THE
COURT ON 22.07.2021 DELIVERED THE FOLLOWING:
 OP(C).4/2016
                                         2

                            M.R. Anitha, J.
                        ---------------------
                          O.P.(C).4 of 2016
                       ----------------------
                       Dated : 22nd July, 2021


                               JUDGMENT

1. This Original Petition has been filed against the

order in I.A.4317/2014 in O.S.810/2010 dated

3.6.2015 of Additional Sub Court, Kozhikode which

was filed under section 10 of the Code Of Civil

procedure, 1908 (hereinafter called as 'the Code')

to stay the proceedings in that suit.

2. Petitioner is the sole defendant in the above Suit

and the Suit has been filed by the

respondent/plaintiff for a direction to pay

Rs.1,60,000/- towards the licence fee, and for a

mandatory injunction to vacate from the plaint

schedule property. According to the petitioner, she

is not liable to pay the licence fee as alleged.

Before the filing of O.S.810/2010, in the year 2009

the petitioner/defendant had filed O.S.1191/2009

before the Munsiff Court, Kozhikode. She executed a

licence agreement on 15.3.2008 for a period of two OP(C).4/2016

years with the respondent and thereafter they

shifted their machineries of manufacturing

disposable plates and tumblers and they were waiting

for obtaining the raw materials for starting the

business. The agreed licence fee was Rs.7000/- per

month and it was paid upto August 2008 but no

receipt was issued. Towards security of the licence

agreement, Rs.50,000/- was received from the

petitioner by the respondent. Petitioner had to meet

an expense of Rs.18 Lakhs for starting the venture

and for arranging the amount she had to mortgage the

machineries with Lord Krishna Bank and the liability

is still subsisting. The machineries are very

valuable and have to be protected from heat and sun.

Since the raw materials could not be arranged for

manufacturing plates the shed was lying closed. When

the son of the petitioner went to the scheduled

property on 12.12.2009, it was found that the lock

of the shed was broken and the machineries were

lying scattered in the adjacent courtyard of the

shed. On enquiry it was revealed that despite the OP(C).4/2016

agreement with the petitioner, the respondent had

entrusted the shed to some other person. Thereafter

complaint was filed at Nallalam Police Station, but

no action was taken. Hence the Suit was filed for a

declaration of the right of possession and enjoyment

of the petitioner over plaint A schedule shed.

Mandatory injunction is also sought for directing

the respondent to hand over the shed to the

petitioner and for other consequential reliefs.

3. The plaint was subsequently returned and represented

before the II Additional Sub Court, Kozhikode and it

was re-numbered as O.S.603/2011 and copy of that

plaint is produced as Ext-P1. After making

appearance in the above Suit, the respondent filed

O.S.810/2010 before the Sub Court, Kozhikode and the

petitioner herein filed written statement denying

the plaint averments and with a specific contention

that the Suit has to be stayed under Sec.10 in view

of the previous Suit filed by the petitioner. By the

impugned order the learned Sub Judge dismissed that

petition. Aggrieved by the same, this Original OP(C).4/2016

Petition has been filed.

4. Notice was issued to the respondent and both sides

were heard.

5. The main contention of the learned counsel for the

petitioner is that the court below dismissed the

petition under Sec.10 of the Code mainly based on

the delay in filing the petition. In the written

statement there is a specific contention for staying

the Suit under Sec.10 and no separate petition is

necessary and it is the duty of the Court under

Sec.10 to stay the Suit if the conditions stipulated

therein are satisfied. Written statement though

filed by the petitioner as early as on 14.10.2011,

the Court failed to consider the issue raised by the

petitioner. It is also his contention that the Suit

filed by the respondent ie, Ext.P2 case was happened

to be decreed ex parte due to some unforeseen

circumstances since mother-in-law was hospitalized

and later ex parte decree was set aside in August

2014. Against the dismissal of the Suit filed by the

petitioner, R.F.A.580/2014 is pending before this OP(C).4/2016

Court. The matter in issue in the subsequent Suit

filed by the respondent is directly and

substantially in issue in the previously instituted

Suit by the petitioner and hence the impugned order

is liable to be set aside.

6. The learned counsel for the respondent on the other

hand, would contend that the impugned order passed

by the learned Sub Judge is perfectly legal and

proper and no interference whatsoever is called for.

7. According to the learned counsel for the petitioner

the petition filed under Sec.10 of the Code was

dismissed mainly on the ground of delay. According

to him, a specific contention has been raised in

the written statement about the bar under Sec.10 and

it was the duty of the Court to stay the proceedings

in the subsequent Suit once it is found that the

matter in issue is directly and substantially in

issue in the previously instituted Suit. The copy of

the written statement filed by the petitioner to

Ext.P2 Suit, which is the subsequent Suit filed by

the respondent against the petitioner, is produced OP(C).4/2016

as Ext.P2(a), would show that in paragraph No.2 the

petitioner had specifically raised a contention

about the previous Suit and further sought for stay

of the Suit under Section 10 of the Code. The

learned counsel would contend that the code of Civil

Procedure, 1908 specifically provides about the

petition to be filed in cases where the written

application is necessary and he would take my

attention to Secs 22, 24, 46, 50, 51, 136, 152 etc

of the Code. Sec.10 of the Code does not contemplate

filing of a written application the learned counsel

contends.

8. The commentaries on the Code of Civil Procedure by

Sir.Dinshah Fardunji Mulla, 18th Edition, page 176,

states in synopsis No.24 quoting Ambika Sahu v.

Sumithra Sahu (AIR 1990 Orissa, 127) that

application for stay of Suit under Sec.10 should be

presented to the Court in which the subsequent Suit

is pending.

9. Pukhraj D Jain and others v. G.Gopalakrishna (2004

7 SCC 251) while considering the nature and scope of OP(C).4/2016

duty of court in stay of suit under Sec.10 of the

Code it has been held by the Apex Court that mere

filing of an application under Sec.10 does not put

an embargo on the power of Court to examine the

merits of the matter. It is also held that it is

not for the litigant to dictate the Court as to how

the proceedings are to be conducted and it is for

the Court to decide best course to be adopted for

expeditious disposal of case. It is also held

therein that Sec.10 enacts a rule of procedure and

decree passed in contravention thereof is not a

nullity.

10. The wording of Sec.10 of the Code would go to

show that there is a direction to the Court against

the proceeding 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 etc. But without bringing to

the notice of Court the contention raised, the Court OP(C).4/2016

may not be knowing whether the defendant is pursuing

the contention. If the earlier suit is pending in

another Court, the Court may not have any occasion

to verify whether matters in issue in the previously

instituted suit and the subsequent suit are directly

and substantially the same. The party who wants to

get the proceedings in the subsequent suit stayed

can also insist for hearing the question of stay of

suit under sec.10 as a preliminary issue by bringing

to the notice of the court, their contention under

Sec.10 CPC. Mere raising a contention in the written

statement is not sufficient.

11. The fact that an ex-parte decree was passed

after filing the written statement by the petitioner

in Ext.P2 Suit also leads to an inference that in

spite of raising a contention of bar under Sec.10

the petitioner never pursued the matter.

12. The order impugned, further shows that the

learned Sub Judge has noted that the plaintiff in

the subsequent Suit specifically prayed for a

mandatory injunction and it has to be proceeded. It OP(C).4/2016

is further observed that the contention of the

petitioner/defendant that he had been forcibly

evicted might also be a pretext to get over the

licence fee arrears claimed and the Court has

ultimately left the questions open for consideration

during evidence. So apart from delay, other factors

have also been weighed by the learned Sub Judge

while dismissing the petition.

13. In National Institute of Mental Health and

Neuro Sciences v. C.Parameshwara (2005 (2) SCC 256),

the Hon'ble Supreme Court had occasion to determine

the scope and ambit of Sec.10 of the Code and it has

been held as follows :

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 OP(C).4/2016

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 previously instituted suit. The words "directly and substantially in issue" are used in contra-distinction 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 subject matter in both the proceedings is identical.

14. In Aspi Jal And Anr vs Khushroo Rustom

Dadyburjor (AIR 2013 SC 1712) it is held as OP(C).4/2016

follows:

"...........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 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."

15. So from the above settled principles it is

clear that in order to attract the bar under Sec.10

of the Code the fact in issue in the subsequent Suit

might be directly and substantially in issue in the

previous Suit. The decision in the previous Suit

should operate as res judicata in the subsequent OP(C).4/2016

Suit also. It is also necessary that all the

matters in issue in the previous Suit should be

substantially and directly in issue in the

subsequent Suit. In other words, some of the issues

in the previous Suit if have any connection with the

subsequent Suit the bar under Sec.10 will not apply.

16. The previous Suit, Ext.P1 filed by the

petitioner is for a declaration that the petitioner

is entitled for recovery of possession and right

over the plaint schedule shed based on the licence

agreement and for a mandatory injunction to restore

the possession of plaint schedule shed to the

petitioner and other consequential relief of

injunction and damages etc. In Ext.P2 case filed

against the petitioner, the respondent has got a

specific contention that the petitioner/defendant

did not pay any amount towards licence fee and as

per the licence agreement, the licence period will

expire on 14.3.2010. So licence fee arrears to the

tune of Rs.1,60,000/- deducting Rs.50,000/-which has

been paid as advance by the petitioner/defendant has OP(C).4/2016

been claimed in Ext.P2 Suit. It was in the above

circumstances, Ext.P2 Suit was filed by the

respondent seeking for a decree of mandatory

injunction directing the defendant to leave and

vacate the plaint schedule shed and also seeking for

licence fee arrears till they vacate from the shed

as damages for use and occupation. The fact that the

petitioner has been put in possession of the shed in

pursuance of a licence agreement for two years is

seen admitted. As per the averments in Ext.P2 case,

the period of licence is over and the petitioner

licensee is not paying the licence fee and hence

they sought for evicting the petitioner by way of

mandatory injunction from the premises and for

realization of the licence fee dues. The facts in

issue in both cases and the relief sought cannot be

said as one and the same. All facts in issue in

Ext.P2 case cannot be said to be in issue directly

and substantially in Ext.P1 case filed by the

petitioner. The relief sought in Ext.P2 Suit cannot

at any moment be satisfied by passing a decree or OP(C).4/2016

dismissing the previous Suit. At the best, what can

be claimed by the petitioner is for a joint trial of

the cases if the matter pending before this court is

ultimately decided in favour of the petitioner since

it has come out that Ext.P1 case filed by the

petitioner against the respondent has been dismissed

for default and now the matter is pending before

this Court as R.F.A.580/2014. Hence there is no

error of jurisdiction or failure to exercise

jurisdiction in passing the impugned order

warranting any interference of this Court under

Article 227 of the Constitution of India.

17. In the result, Original Petition is found to be

devoid of any merit and hence dismissed.

Sd/-

M.R.Anitha, Judge

Mrcs/14.7.

OP(C).4/2016

PETITIONER EXHIBITS EXT.P-1: A TRUE COPY OF THE PLAINT DATED 17.12.2009 SUBMITTED BY THE PETITIONER HEREIN BEFORE THE MUNSIFF COURT, KOZHIKODE AS O.S.NO.1191 OF 2009 AND LATER REPRESENTED BEFORE THE IIND ADDITIONAL SUB COURT, KOZHIKODE AND RE- NUMBERED AS OS NO.603 OF 2011 EXT.P-1(A): A TRUE COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE RESPONDENT HEREIN BEFORE THE IIND ADDITIONAL SUB COURT, KOZHIKODE IN EXHIBIT P1 EXT.P-2: A TRUE COPY OF THE PLAINT DATED 12.10.2010 IN OS NO.810 OF 2010 BEFORE THE SUB COURT, KOZHIKODE.

EXT.P-2(A): A TRUE COPY OF THE WRITTEN STATEMENT DATED 14.10.2011 BEFORE THE SUB COURT, KOZHIKODE.

EXT.P-3: A TRUE COPY OF THE DISCHARGE SUMMARY ISSUED BY IQRAA HOSPITAL, KOZHIKODE DATED 6.9.2012 EXT.P-4: A TRUE COPY OF THE JUDGEMENT DATED 7.4.2014 PASSED BY THE SUB COURT, KOZHIKODE.

EXT.P-4(A): A TRUE COPY OF THE DECREE DATED 7.4.2014 PASSED BY THE SUB COURT, KOZHIKODE.

EXT.P-5: A TRUE COPY OF THE AFFIDAVIT IN SUPPORT IN IA NO.4317 OF 2014 IN OS NO.810 OF 2010 SUBMITTED BEFORE THE SUB COURT, KOZHIKODE DATED 4.11.2014 EXT.P-6: A TRUE COPY OF THE ORDER PASSED BY THE IST ADDITIONAL SUB COURT, OP(C).4/2016

KOZHIKODE IN IA NO.4317 OF 2014 IN OS NO.810 OF 2010.

TRUE COPY