Dr. Manish Rastogi vs Preetam Singh Kirar
2022 Latest Caselaw 4382 MP

                                                 1              M.P.No.2377/2021

              HIGH COURT OF MADHYA PRADESH
                          BENCH AT GWALIOR


                           :SINGLE BENCH:


          {HON'BLE SHRI JUSTICE ANAND PATHAK}


           MISCELLANEOUS PETITION NO.2377/2021

                             Dr. Manish Rastogi
                                    Vs.
                            Preetam Singh Kirar

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Shri P.C. Chandil, learned counsel for the petitioner.
Shri Harish Dixit, learned counsel for respondent.
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                                *************

                                ORDER

(Delivered on 29th day of March, 2022)

1. The present petition under Article 227 of Constitution of India

is preferred by the petitioner/defendant being crestfallen by the

order dated 22-07-2021 passed by 12 th Civil Judge Class -I,

Gwalior whereby the application under Section 10 read with

Section 151 of CPC preferred by the petitioner has been

rejected.

2. Precisely stated facts of the case are that respondent/plaintiff

filed a suit for declaration and permanent injunction against

the petitioner/defendant along with application under under

Order XXXIX Rule 1 and 2 of CPC with the pleadings that

plaintiff is having a plot and well under right, title and interest,

situate at House No.1018 Goshpura No.1, Hanuman Bada,

Matawali Gali, Pargana and District Gwalior. Said house was

purchased by petitioner from Shyambabu Sharma vide sale

deed dated 28-07-2010. Between the plot of plaintiff and well,

a common passage is available which is being used by plaintiff

to reach to the well. It is the allegation of plaintiff that

defendant (petitioner herein) is trying to take possession of the

said well and therefore, obstructing passage. On such

pleadings and submissions, suit for declaration and permanent

injunction has been preferred.

3. Counsel for the petitioner as defendant appeared and contested

the case and replied the application preferred under Order

XXXIX Rule 1 and 2 of CPC. Beside that, an application

under Section 10 read with Section 151 of CPC was also

preferred by the petitioner on the basis of submission that

earlier suit filed on 23-09-2005 for permanent and mandatory

injunction in which it has been pleaded that the then plaintiff

(father of petitioner) was having right, title and interest over

the land in question (house No.11/970) and sought declaration

that the then defendant (respondent herein) is trying to

construct window, ventilation, balcony and rooftop towards

the house of petitioner. In the earlier suit, father of the

petitioner alleged that respondent is trying to obstruct the way

of petitioner by constructing window, door, ventilation, sink

and rooftop.

4. As submitted, suit was decreed vide judgment and decree

dated 02-07-2010 by 10th Civil Judge Class -I, Gwalior. First

appeal under Section 96 of CPC was preferred by the

respondent against the said judgment and decree but the first

appellate Court vide judgment and decree dated 06-05-2011

dismissed the appeal preferred by the respondent. Thereafter,

wife of respondent as defendant No.2 filed Second Appeal

bearing No.420/2011 which is still pending consideration

before this Court.

5. Therefore, it is the submission of learned counsel for the

petitioner that trial Court erred in rejecting the application

under Section 10 read with Section 151 of CPC preferred by

petitioner as defendant because property in issue and parties

in issue were same in the earlier round of litigation in which

judgment and decree has been passed in favour of petitioner by

the trial Court and confirmed by the first appellate Court. Now

matter is pending in Second Appeal and incidently in Second

Appeal, an application for amendment has been preferred by

the appellant (wife of present respondent) in which she wants

to amend the pleadings regarding the fact that vide registered

sale deed dated 28-07-2010 her husband purchased the

property in question, therefore, he is owner of the property just

adjacent to the property of petitioner. Therefore, when the

issues directly and substantially in case are same and when

parameters of Section 10 of CPC are satisfied in the case, then

trial Court erred in rejecting the application so preferred. To

avoid multiplicity of litigations and orders, it is imperative that

present suit pending consideration before the trial Court be

stayed till the decision of Second Appeal because subject

matter of Second Appeal and pending Civil Suit are directly

and substantially the same and in fact parties are also same.

Therefore, petition be allowed and order impugned of trial

Court be set aside.

6. Learned counsel for the respondent opposed the submissions

and submitted that earlier suit was preferred by father of

petitioner in which petitioner was later on impleaded as party

in the capacity of legal heir, therefore, he was plaintiff in the

case against the present respondent Preetam Singh (as plaintiff

in the subsequent suit) and his wife Smt. Chandra Singh. Suit

was decreed against Preetam Singh and his wife Smt. Chandra

Singh both. First appeal was preferred by Smt. Chandra Singh

in which she suffered and first appeal got dismissed. Later on,

she preferred second appeal vide No.420/2011 which is

pending consideration before this Court.

7. It is further submitted by learned counsel for the respondent

that after the judgment and decree dated 02-07-2010 passed by

the trial Court in earlier suit, respondent Preetam Singh

purchased part of the land vide sale deed dated 28-07-2010,

therefore, on the basis of subsequent event i.e. execution of

sale deed, fresh suit has been filed. Both the suits are not

identical and issues are different. He relied upon the judgments

of Apex Court and High Court in the matter of V. Rajeshwari

Vs. T.C. Saravanabava (2004) 1 SCC 551, Chanderbai Vs.

State of M.P., (2011) 4 MPLJ 307 and Jagdamba Oil

Agency Vs. State of M.P. 2006 (1) MPLJ 564.

8. Heard learned counsel for the parties at length and perused the

documents appended thereto.

9. It is a case where petitioner seeks stay of subsequent suit

bearing No.104A/2019 pending before 12 th Civil Judge Class

-I, Gwalior on the ground that in respect of same subject

matter, Second Appeal is pending consideration in which two

Courts below have given findings on merits after appreciating

the facts as well as law applicable in the case.

10. Section 10 of CPC deals in respect of those exigencies where

duplicity of proceedings and vexatious litigation coming out of

it is aimed to be avoided, it 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 India have 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."

11. In the present facts and circumstances of the case earlier suit

was filed by father of petitioner (since deceased and

represented through L.Rs. including present petitioner) and

was in respect of property as enumerated in said suit situate at

house No.11/970, Goshpura No.1, Fort Road, Gwalior and it

was specifically pleaded that the then plaintiff is in right, title,

interest and possession of a house and well as suit property

and it was specifically pleaded that defendant (present

respondent) is trying to interfere into legitimate possession of

the petitioner and therefore, permanent and mandatory

injunction was sought. Said suit was decreed vide judgment

dated 02-07-2010 and confirmed by first appellate Court in

Civil Regular Appeal No.13-A/2010 vide judgment and decree

dated 06-05-2011 and now Second Appeal No.420/2011 is

pending consideration before this Court.

12. Along with plaint, map was annexed by the then plaintiff as

Annexure in which location was categorically mentioned.

13. Subsequent suit vide COS No.104-A/2019 filed in 2019 on

the anvil of sale deed executed subsequent to the judgment and

decree passed by the trial Court. In other words, judgment

and decree was passed by the trial Court on 02-07-2010 and

sale deed has been executed in favour of present respondent on

28-07-2010 but thereafter again the respondent kept mum for 9

years and thereafter filed the instant suit on almost same set of

submissions and reliefs which have been sought earlier. If seen

closely, then it may undo some part of judgment and decree

passed by the trial Court. In other words, if suit is allowed to

be proceeded then either it may lead into culmination of

judgment and decree which may affect passing of earlier

judgment and decree by the trial Court or may undo the benefit

accrued to the petitioner as plaintiff in the earlier litigation or

even possibility cannot be ruled out that benefits/fruits of the

judgment and decree flowing in favour of petitioner may be

diluted. Therefore, it is imperative that subsequent suit may be

stayed so that both the litigating parties who are same in both

the litigations may take endeavours to get the Second Appeal

decided and thereafter ensure pace of subsequent suit.

14. Trial Court in the present case caused illegality in not

appreciating the true import of Section 10 of CPC and its

object which is not only to avoid multiplicity of proceedings

but to avoid vexatious prosecution of a litigant while

unnecessarily participating in the proceedings which was

already concluded by the earlier judgment. Judgment in

previous suit may act as res judicata in later suit and

possibility of this aspect cannot be ruled out in the present set

of facts.

15. It would be apposite to reiterate the guidance of Apex Court as

given in the case of Aspi Jal and Anr. Vs. Khushroo Rustom

Dadyburjor, AIR 2013 SC 1712:

"11. 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. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences vrs.

C.Parameshwara, (2005) 2 SCC 256 in which it has

been held 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 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."

12. 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 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. 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 affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit."

16. Considering the facts and circumstances of the case and the

judgment as referred above, in the considered opinion of this

Court proceedings of subsequent suit bearing No.104A/2019

pending before 12th Civil Judge Class -I, Gwalior deserves to

be and is hereby stayed till the decision of Second Appeal

No.420/2011.

17. Impugned order dated 22-07-2021 passed by 12 th Civil Judge

Class -I, Gwalior is hereby set aside and petition is allowed to

that extent.

                                                      (Anand Pathak)
Anil*                                                     Judge
               ANIL KUMAR
               CHAURASIYA
               2022.03.29
               18:34:45
               -07'00'