Madras High Court
Karima Bee (Died) vs D.Sampath on 9 August, 2024
Author: S.S. Sundar
Bench: S.S. Sundar
O.S.A.No.290 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
O.S.A.No.290 of 2018
and
C.M.P.Nos.13495 to 13497 of 2018
1.Karima Bee (died)
2.Rahamathunnisa
3.Ramiza Sulthana
4.Javeed Hussain
5.Syed Amjad Hussain
6.Iqbal Ahmed
7.Ayeesha Bee ... Appellants
Vs.
1.D.Sampath
2.K.Damodaran
3.N.Sundara Babu
4.T.Elango
5.S.Sivaraman (died)
6.A.Rajagopalan
7.Devaki
8.Kavitha
9.Sujatha
10.Subashini
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O.S.A.No.290 of 2018
11.Senthil Kumar
12.Geetha Murugan ... Respondents
[R4 to R6 impleaded as respondents vide Court order
dated 02.03.2021 in CMP No.21819 of 2018 in
OSA No.290 of 2018]
[R7 to R12 brought on record as LRs of the deceased
5th respondent vide Court order dated 15.09.2022 in
CMP No.9975 of 2022 in OSA No.290 of 2018]
Original Side Appeal filed under Order XXXVI Rule 9 of Original
Side Rules r/w. Clause 15 of Letters Patent against the order and decree
dated 06.06.2018 in A.No.5893 of 2016 in C.S.No.572 of 2016 on the file
of this Court.
For Appellant : Mr.A.Ilaya Perumal
For R1 to R3 : Mr.R.Selvakumar
For R4 & R6 : Mr.J.Kamaraj
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
This Original Side Appeal is directed against the order of the learned
Single Judge in A.No.5893 of 2016 in C.S.No.572 of 2016, dated
06.06.2018.
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2.The plaintiffs in the suit in C.S.No.572 of 2016 have filed this
appeal. The appellants as plaintiffs filed the suit in C.S.No.572 of 2016 for
declaration of their title and consequential reliefs in C.S.No.572 of 2016 in
respect of the property which is also subject matter of another suit filed by
the respondents 1 to 3 in O.S.No.11998 of 2010 (originally it was
C.S.No.484 of 1997 before this Court and later transferred to Civil Civil
Court, Chennai, and renumbered as O.S.No.11998 of 2010). The plaintiffs
herein are also impleaded as defendants in the said suit. It is not in dispute
that the subject matter of the two suits are one and the same. Admittedly,
there is no issue regarding identity of parties. In other words, the parties in
the two suits are one and the same. During pendency of the suit, defendants
1 to 3 in C.S.No.572 of 2016 filed an application in A.No.5893 of 2016
under Section 10 of Civil Procedure Code to stay the suit in C.S.No.572 of
2016 on the ground that the first suit filed by the defendants in the suit for
declaration of their title and for consequential prayers in respect of the same
property, is pending. The said application was allowed by the learned
Single Judge of this Court by impugned order dated 06.06.2018. Aggrieved
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by the same, the plaintiffs have filed the above Appeal.
3.Section 10 of Civil Procedure Code reads as follows :
“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 having 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.”
4.Considering the scope of Section 10 of Civil Procedure Code and
pleadings in both sides, the learned Single Judge consciously held that the
second suit is in respect of the same property. The parties are one and the
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same. In the said circumstances, the learned Single Judge has rightly
allowed the application.
5.It is now brought to the notice of this Court that the appellants have
filed an application seeking withdrawal of the suit in O.S.No.11998 of 2010
pending before the I Additional City Civil Court and transfer the same to
this Court to decide both suits jointly. However, the said application is still
pending. Now, the learned counsel appearing for the appellants, as well as
respondents, admit before this Court that the entire trial in O.S.No.11998 of
2010 is completed and the matter is now posted for arguments. In view of
the same, this Court is not inclined to entertain this appeal. Though the
appellants ought to have prosecuted their application seeking transfer/joint
trial of other suit, they have failed in getting an order from this Court for a
joint or simultaneous trial. This Court, at this stage, is not inclined to
interfere with the order of the learned Single Judge granting stay of further
proceedings in the subsequent suit in C.S.No.572 of 2016, which is in tune
with settled principles, particularly the provisions of Section 10 of CPC.
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6.As a result, this Original Side Appeal is dismissed for want of
merits. No costs. Consequently, connected miscellaneous petitions are
closed.
(S.S.S.R., J.) (K.R.S., J.)
09.08.2024
mkn
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
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S.S. SUNDAR, J.
and
K. RAJASEKAR, J.
mkn
09.08.2024
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