Sri M Raghavender Reddy vs B Haritha And 2 Others
2022 Latest Caselaw 3997 Tel

    IN THE HIGH COURT FOR THE STATE OF TELANGANA
                                  AT: HYDERABAD
                                        CORAM:

                       *HON'BLE SRI JUSTICE K. LAKSHMAN

                 +CIVIL REVISION PETITION No.950 OF 2022

% Delivered on: 01-08-2022

Between:
# Mr. M. Raghavender Reddy                                         .. Petitioner

                                          Vs.

$ Mrs. B. Haritha & Others                                       .. Respondents


! For Petitioner                                : Mr. N. Bhujanga Rao

^ For Respondents                               : Mr. N. Praveen Reddy



< Gist                                          :


> Head Note                                     :


? Cases Referred                                :


         1.   2014 (4) ALD 129
         2.   (2013) 4 SCC 333
         3.   2008 (5) ALT 749
         4.   2002 (2) CCC 444 (Bom.)
         5.   2013 (6) ALT 286
         6.   2012 (3) ALD 361
         7.   (2004) 6 SCC 756
         8.   (2005) 2 SCC 256
                                     2
                                                                              KL, J
                                                              C.R.P. No.950 of 2022


             HON'BLE SRI JUSTICE K. LAKSHMAN

          CIVIL REVISION PETITION No.950 OF 2022
ORDER:

Heard Mr. N. Bhujanga Rao, learned counsel for the petitioner

and Mr. N. Praveen Reddy, learned counsel for the respondents.

2. Challenging the order dated 01.03.2022 in I.A. No.368 of

2021 in I.A. No.283 of 2021 in O.S. No.144 of 2021 passed by the

learned Principal Junior Civil Judge, Mahabubnagar, the present Civil

Revision Case is filed.

3. FACTS OF THE CASE:

i) Respondent No.1 herein had filed a suit vide O.S. No.130 of

2021 against the petitioner herein and 2 others i.e., Mr. K. Rajeshwar

Reddy and Mr. A. Devender Reddy, seeking the following relief:

"1. Decree be passed for cancellation of Registered agreement of sale cum GPA No.6656/2016, dated: 19-05- 2016, SRO Mahabubnagar obtained by Defendant No.1 by fraud from the plaintiff is illegal and void document in respect of suit schedule land and alienation of suit land by Defendant No.1 in favour of Defendant No.2 and 3 and every subsequent sale deed are illegal and void documents.

2. Issue of permanent injunction restraining the defendants from claiming any right over the suit schedule land.

3. Costs of the suit be awarded."

KL, J C.R.P. No.950 of 2022

ii) The petitioner herein had filed a suit vide O.S. No.144 of

2021 against the respondents herein for the following relief:

" i) To pass perpetual injunction restraining the defendants, their followers, and their men or any other persons from interfering with lawful and peaceful possession of the plaintiff over the suit schedule property.

ii) To award the costs of the suit.

iii) To grant such any other relief or reliefs for which the plaintiff is entitled and this Hon'ble Court deems fit and proper, in circumstances of the case."

iii) In both the suits, the suit schedule property is one and the

same i.e., the land in Survey No.46/1, Dry Land to an extent Acs.4-15

guntas, situated at Yaronipally Village of Hanwada Mandal,

Mahabubnagar District.

iv) Along with O.S. No.144 of 2021, the petitioner herein had

also filed an interlocutory application vide I.A. No.283 of 2021

seeking ad interim injunction and the same was granted.

v) Thereafter, the respondents herein had filed an application

under Section - 10 of the Code of Civil Procedure, 1908 (for short

'CPC') vide I.A. No.368 of 2021 in I.A. No.283 of 2021 in O.S.

No.144 of 2021, to stay further proceedings in O.S. No.144 of 2021

KL, J C.R.P. No.950 of 2022

till the disposal of the suit in O.S. No.130 of 2021 on the following

grounds:

a) They have already filed a suit vide O.S. No.130 of 2021 against

the petitioner herein;

b) A notice was ordered;

c) The said suit is pending;

d) Therefore, the petitioner herein cannot file a suit in respect of

the very same land; and

e) As per Section - 10 of the C.P.C., all proceedings of subsequent

suit i.e., O.S. No.144 of 2021 filed by the petitioner herein to be

stayed.

vi) The said application was opposed by the petitioner herein

stating that the relief sought by him is different and the same will not

fall within the ambit of Section - 10 of the C.P.C. Therefore, both the

suits have to be tried and decided.

vii) Vide order dated 15.03.2022, the Court below has allowed

the said application on the ground that the property involves in both

the suits is one and the same, but the relief claimed is different. There

is a chance of arising complications in future if findings are different

KL, J C.R.P. No.950 of 2022

in both the suits. With the said findings, the Court below has stayed

the proceedings in O.S. No.144 of 2021 till the disposal of O.S.

No.130 of 2021.

4. CONTENTIONS OF THE PETITIONER:

i) Mr. N. Bhujanga Rao, learned counsel for the petitioner,

would submit that the impugned order is against the material on

record and against the conditions specified in Section - 10 of the

C.P.C.

ii) The relief sought in both the suits are different though some

of the parties are common and suit schedule property is one and the

same. However, at the most, both the suits can be tried together by

clubbing the same.

iii) There is no consideration of the said aspects by the Court

below in the impugned order.

iv) In support of his submissions, learned counsel has placed

reliance on the judgments on M/s. Amrutlal & Company,

Merchants & Commission Agents, Nizamabad v. M/s. Rankids

KL, J C.R.P. No.950 of 2022

Impex Private Limited, New Delhi1, Aspi Jal v. Khushroo Rustom

Dadyburjor2 and K. Venkata Swamy v. Smt. Saikna Bee3.

v) With the aforesaid submissions, learned counsel sought to

allow the revision.

5. CONTENTIONS OF THE RESPONDENTS:

i) Mr. N. Praveen Reddy, learned counsel for the respondents,

would contend that the suit schedule property in both the suits is one

and the same; parties are also common and, therefore, to avoid

conflict of judgments, the proceedings in subsequent suit i.e., O.S.

No.144 of 2021 are liable to be stayed.

ii) The Court below considering all the said aspects and the

conditions stipulated in Section - 10 of the C.P.C. and also the

principle laid down by the Hon'ble Supreme Court in Sairabi Sayyad

Abdul Aziz deceased through her L.Rs v. Abdul Rashid Abdul

Majid4 allowed the petition staying the proceedings in the subsequent

suit. Thus, there is no error in the order under challenge.

. 2014 (4) ALD 129

. (2013) 4 SCC 333

. 2008 (5) ALT 749

. 2002 (2) CCC 444 (Bom.)

KL, J C.R.P. No.950 of 2022

iii) In support of his contentions, learned counsel has also

relied upon the decisions in Aspi Jal2, which is also relied upon by the

learned counsel for the petitioner, Noor Ahmed v. Mazharul Qamar5

and G.K. Reddy v. G.Aswatha Reddy6.

iv) With the aforesaid contentions, learned counsel sought to

dismiss the revision.

6. ANALYSIS AND FINDING OF THE COURT:

i) It is not in dispute that the suit schedule property in both the

suits is one and the same. The suit filed by the petitioner herein i.e.,

O.S. No.144 of 2021 is subsequent to the suit filed by respondent No.1

herein i.e., O.S. No.130 of 2021. In both the suits, the petitioner

herein and respondent No.1 herein are common. In O.S. No.130 of

2021, there are two more defendants i.e., Mr. K. Rajeshwar Reddy and

Mr. A. Devender Reddy. In O.S. No.130 of 2021, respondent No.1

herein sought the relief of cancellation of registered Agreement of

Sale - cum - General Power of Attorney bearing document No.6656 of

2016, dated 19.05.2016, and for perpetual injunction as mentioned

above. Whereas, the relief sought by the petitioner herein in the

. 2013 (6) ALT 286

. 2012 (3) ALD 361

KL, J C.R.P. No.950 of 2022

subsequent suit O.S. No.144 of 2021 is for perpetual injunction

against the respondents herein as mentioned above. Therefore, the

relief sought in both the suits is different though the suit schedule

property is one and the same. The petitioner and respondent No.1

herein are one and the same in both the suit, but there are two more

defendants in O.S. No.130 of 2021. It is relevant to note that both the

suits are pending before the very same Court i.e., Principal Junior

Civil Judge, Mahabubnagar. Therefore, it cannot be said that both the

suits are pending with regard to the very same relief as the reliefs are

different and some of the parties are different.

ii) In this regard, it is apt to refer to Section - 10 of the C.P.C.,

which is 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."

KL, J C.R.P. No.950 of 2022

iii) In K. Venkata Swamy3, the composite High Court of

Andhra Pradesh at Hyderabad, considering the fact that the suits are

pending before the same Court, both of them are between the same

parties, in respect of same subject matter, instead of ordering stay of

the latter suit under Section - 10 of the CPC, directed for disposal of

both the suits together so that all the issues can be finally thrashed out

and further protraction of the litigation can be avoided.

iv) In Gupte Cardiac Care Center and Hospital v. Olympic

Pharma Care (P) Ltd.,7, the Apex Court held that if the matter in the

later suit is found to be "directly and substantially in issue" in the

previously instituted suit, the later suit is liable to be stayed under

Section - 10 of the C.P.C.

v) In National Institute of Mental Health and Neuro

Sciences v. C. Prameshwara8, on examination of the facts therein

and also the scope and ambit of Section - 10 of the C.P.C., the Apex

Court held as under:

" "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

. (2004) 6 SCC 756

. (2005) 2 SCC 256

KL, J C.R.P. No.950 of 2022

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'."

35. Thus, the Court held that the object of Section 10 is to avoid recording of conflicting findings on issues which are directly and substantially in issue in the previously instituted suit and 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 and that Section 10 applies only in cases where the whole of the subject matter in both the suits is identical.

KL, J C.R.P. No.950 of 2022

36. Recently in Aspi Jal and another (5 supra), the Court again reiterated the principles laid down in the above decision in National Institute of Mental Health and Neuro Sciences (1 supra). In addition it also indicated that the test would be to ask, 'can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed?' And if the answer is in the affirmative, the subsequent suit is not fit to be stayed. It also held that even if many of the matters in issue are common between the suits, unless the entire subject matter of the two suits is the same, Section 10 will not apply. It clearly stated that Section 10 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 same and that 'the matter in issue' is not equivalent to 'any of the questions in issue'....."

vi) Relying on the principle in National Institute of Mental

Health and Neuro Sciences8, the High Court of Andhra Pradesh in

M/s. Amrutlal & Company1 held that the object of Section - 10 of

the C.P.C. is to avoid recording of conflicting findings on issues

which are directly and substantially in issue in the previously

instituted suit and 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 and that

KL, J C.R.P. No.950 of 2022

Section - 10 applies only in cases where the whole of the subject

matter in both the suits is identical.

vii) In Aspi Jal2, the Apex Court reiterated the said principle.

viii) In view of the said principle and also considering the

factors referred to in Section - 10 of the C.P.C., coming to the case on

hand, as discussed above, except the suit schedule property in both the

suits, the relief sought in both the suits are different. Some of the

parties are different. Both the suits are pending before the very same

Court. Therefore, the facts of the case in the order under challenge

will not fall under the conditions mentioned in Section - 10 of the

C.P.C. Since both the suits are pending in the very same Court, instead

of trying them separately, it would be better to try together by

clubbing both the suits. The respondents herein have filed I.A.

No.368 of 2021 seeking to stay the proceedings in O.S. No.144 of

2021. Without considering the said facts, the scope and ambit of

Section - 10 of the C.P.C., and also the principle laid down by the

Apex Court and the composite High Court of Andhra Pradesh at

Hyderabad, the Court below stayed the subsequent suit filed by the

petitioner herein i.e., O.S. No.144 of 2021. By virtue of the stay

KL, J C.R.P. No.950 of 2022

granted by the Court below vide the impugned order, interim

injunction granted in favour of the petitioner in I.A. No.283 of 2021

has become inoperative which will definitely cause prejudice to the

petitioner herein. Therefore, the impugned order is not an order on

proper appreciation of the provisions of Section -10 of the C.P.C. and

also the principle laid down in the aforesaid decisions.

ix) Mr. N. Praveen Reddy, learned counsel for the respondents

referring to the principle laid down in Aspi Jal2 and G.K. Reddy6

would submit that the Court below has passed the order under

challenge properly and there is no error in it. However, in G.K.

Reddy6, this Court has considered the scope and ambit of Section - 10

of the C.P.C. and the effect of stay granted. But, the facts of the said

case are different to the facts of the present case and, therefore, the

same is not helpful to the respondents herein.

7. CONCLUSION:

i) Viewed from any angle, the impugned order is not on

appreciation of correct law and on facts and, therefore, the same is

liable to be set aside.

KL, J C.R.P. No.950 of 2022

ii) The present Civil Revision Case is accordingly allowed

setting aside the order dated 01.03.2022 in I.A. No.368 of 2021 in I.A.

No.283 of 2021 in O.S. No.144 of 2021 passed by the learned

Principal Junior Civil Judge, Mahabubnagar. Consequently, I.A.

No.368 of 2021 filed by the respondents herein in I.A. No.283 of 2021

in O.S. No.144 of 2021 is dismissed.

iii) In the circumstances of the case, there shall be no order as

to costs.

As a sequel, the miscellaneous petitions, if any, pending in the

revision shall stand closed.

_________________ K. LAKSHMAN, J 1st August, 2022 Note: L.R. copy to be marked.

(B/O.) Mgr