Premprakash Porwal @ Kiran Porwal vs Smt. Susheela
2022 Latest Caselaw 3982 MP

                             1

 IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                              BEFORE
               HON'BLE SHRI JUSTICE ANIL VERMA

                   ON THE 23rd OF MARCH, 2022

                MISC. PETITION No. 1154 of 2022

  Between:-
  PREMPRAKASH PORWAL @ KIRAN PORWAL S/O LATE SHRI
  SAGARMAL JI PORWAL , AGED ABOUT 57 YEARS, OCCUPATION:
  BUSINESS R/O 101, JAWAHAR MARG NAGDA (MADHYA PRADESH)
                                                     .....PETITIONER
  (BY SHRI M.A. MANSOORI, ADVOCATE )

  AND

   SMT. SUSHEELA W/O MANOHARLAL JI , AGED ABOUT 64 YEARS,
1. OCCUPATION: NOTHING R/O MAHAKAL STEEL HOUSE NEAR
   GURDWARA BHAWANIMANDI (RAJASTHAN)
   PRAKASHCHANDRA PORWAL S/O LATE SHRI SAGARMAL JI
   PORWAL , AGED ABOUT 77 YEARS, OCCUPATION: BUSINESS
2.
   PRABHAT HARDWARE, 101, JAWAHAR MARG. NAGDA (MADHYA
   PRADESH)
   BABULAL PORWAL S/O LATE SHRI SAGARMAL JI PORWAL , AGED
3. ABOUT 61 YEARS, OCCUPATION: BUSINESS PORWAL HARDWARE
   101, JAWAHAR MARG. NAGDA (MADHYA PRADESH)
   SHANKARLAL PORWAL S/O LATE SHRI SAGARMAL JI PORWAR ,
4. AGED ABOUT 55 YEARS, OCCUPATION: BUSINESS 101, JAWAHAR
   MARG. NAGDA (MADHYA PRADESH)
   KAILASHCHANDRA PORWAL S/O LATE SHRI SAGARMAL JI
5. PORWAL , AGED ABOUT 49 YEARS, OCCUPATION: BUSINESS 101,
   JAWAHAR MARG. NAGDA. (MADHYA PRADESH)
   MEENADEVI W/O SHANKARLAL JI , AGED ABOUT 40 YEARS,
6. OCCUPATION: HOUSE WIFE OJHA MARG. NAGDA. (MADHYA
   PRADESH)
                                                  .....RESPONDENTS

     This petition coming on this day, the court passed the following:

                              ORDER

Heard on admission.

The petitioner has filed present Misc. Petition under Article 227 of Constitution of India challenging the impugned order dated

18.12.2019 whereby an application under section 10 of CPC filed by respondent/defendant has been allowed and further proceedings of civil suit No. 5A/2016 has been stayed till the final disposal of FA No. 65/2019 pending before the High court Bench at Indore. The petitioner has also assailed the impugned order dated 27.7.2017 passed by the court below whereby an application under section 10 of CPC filed by respondent/defendant has been allowed.

The facts of the case in brief are that petitioner/plaintiff preferred a civil suit No. 5A/2016 before the Civil Judge Class I Nagda District Ujjain for seeking declaration of title, permanent injunction and to declare memorandum dated 25.4.1991 and will dated 10.4.2001 null and void against respondents/defendants with respect to two houses situated at Nagda. During pendency of the suit defendants no. 1 to 3 and 5 moved an application under section 10 of CPC . After hearing both the parties trial court has allowed the aforesaid application and passed an order to stay the further proceedings of present suit till final decision of previously instituted civil suit No. 7A/2009. Later on, Additional District Judge Nagda dismissed the civil suit No. 7A/2009 vide order dated 30.11.2018. The defendant no. 5 has moved another application under section 10 of CPC in the present suit on the pretext that plaintiff in the previously instituted suit has challenged the final judgment of the trial court by filing first appeal No. 65/2019 before the High court, therefore, further proceedings of present suit be stayed till final decision in the pending appeal. After hearing both the parties the trial court has allowed the same and ordered to stay proceedings of present suit till final disposal of first appeal. Therefore, petitioner has filed the present petition before this court.

Learned counsel for petitioner contended that impugned

orders passed by learned court below allowing an application under section 10 of CPC submitted by defendants is illegal, incorrect and also against the facts and evidence available on record. The trial court has failed to consider that petitioner has not been impleaded as party in the pending appeal before the Hon'ble High court and even no order of staying the proceedings of previously suit has been passed in pending appeal. The main ingredients for applicability of Section 10 of CPC are missing. The subject matter of both the suits are not directly and substantially similar. The relief in both the suits are different and there is no substantial identity between both the suits. Both the suits are based upon different cause of action, subject matter and based on different relief, therefore, applying the principle of res judicata under the peculiar facts and circumstances is bad in law. The impugned orders passed by learned court below are wrong, illegal, unjust and not sustainable in law and deserve to be quashed. Hence he prays that both the impugned orders dated 27.7.2017 and 18.12.2019 be quashed and trial court be directed to proceed further with the pending civil suit.

Heard learned counsel for petitioner at length and perused all the relevant documents filed by petitioner.

On perusal of the record it is noticed that earlier civil suit No. 7A/2009 was filed by plaintiff/Shankarlal who is respondent /defendant no. 4 in the earlier civil suit No. 5A/2016. The earlier suit was filed for decree of eviction and to declare the alleged will dated 9.4.2001 as null and void, subsequent suit was filed for decree of declaration, of title, to declare will dated 10.4.2001 and memorandum dated 25.4.1991 null and void and injunction. In the earlier suit Shankarlal Porwal was plaintiff and Kailash Chand

Porwal was defendant, they are also impleaded as a party in the subsequently filed civil suit No. 5A/2016. The subject matter and relief claimed in both the civil suits appears to be similar.

The fundamental test to attract section 10 of CPC is that whether a final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit.

Section 10 of CPC applies only in cases where whole of the subject matter in both the suits are identical. The object underlying section 10 CPC is to prevent the court of concurring jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.

Learned counsel for petitioner submitted that the issue in the earlier suit is not similar directly or substantially in issue in the present suit. He placed reliance upon judgment of the Hon'ble Apex court in the case of ASPI JAL and another Vs. Khushroo Rustom Dadyburjor reported in (2013) 4 SCC 333 in which it has been held that :-

"The key words in Section 10 are "the matter in issue is directly and substantially in issue in the 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. When the matter in controversy is the same, it may be immaterial what further relief is claimed in the subsequent suit. Though 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 the application of Section 10 CPC the entire subject matter of the two suits must be the same. Section 10 CPC 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 the same."

In the present case,the plaintiff Shankarlal has filed the earlier suit bearing Civil suit No. 7A/2009 against Kailash Chandra, earlier suit has been dismissed and first appeal has been preferred by Shankarlal Porwal before the High court of MP which is still pending. Pendency of appeal is also deemed as continuation of civil suit. The subsequent suit is also filed on the basis of same subject matter therefore, the subject matter is directly and substantially similar in both the civil suits. In case present suit is allowed to continue, chances of contradictory findings in both the suits cannot be ruled out in respect of the same relief. Therefore, principle of res-judicata under section 10 of CPC is attracted in this case. The decision rendered in the first appeal will create bar for subsequently instituted suit as per principle of res judicata.

Therefore, under the facts and circumstances, the trial court has not committed any illegality or perversity in allowing both the applications filed by respondent/defendant under section 10 of CPC. Thus, this Court does not find any reason to interfere in both the orders impugned.

Hence this Misc. Petition is accordingly dismissed. C.C. As per rules.

(Anil Verma) Judge BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.03.25 11:01:30 +05'30'