Ankam Lingaiah vs Gajula Mallu
2023 Latest Caselaw 3718 Tel

    THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

                    C.R.P.No. 2401 of 2023

ORDER:

This Civil Revision Petition has been filed against the

order of the I Additional District Judge, Mancherial, against the

order dated 21.03.2023 in I.A.No.43/2023 in A.S.No.37/2018.

The I.A. was filed under Section 10 of C.P.C. seeking Stay of all

further proceedings in A.S.No.37/2018 in O.S.No.335/2009 till

the disposal of the second appeal before this High Court in

S.A.No.145/2011.

2. Brief facts leading to the filing of the present Civil

Revision Petition are that the petitioners are the defendants in

the suit O.S.No.15/1997 before the Court of Senior Civil Judge,

Luxettipet, in respect of the subject matter and the same was

decreed in favour of the plaintiffs. Thereafter, the

respondents/defendants preferred an appeal before the District

Judge, Adilabad, vide A.S.No.6/2006, which was dismissed and

against the said order, the defendants preferred second appeal

before the High Court vide S.A.No.145/2011 and the same is

pending adjudication. Subsequently, the respondents/plaintiffs

filed another suit against the defendants in respect of the suit

PMD,J CRP.No. 2401 of 2023

schedule land for recovery of the possession and the same was

numbered as O.S.No.335/2009 and the same was also allowed

and decreed in favour of the plaintiffs and against the same, the

defendants preferred A.S.No.37/2018 along with

I.A.No.43/2023 seeking Stay of all further proceedings in the

appeal suit till disposal of the second appeal before the High

Court in S.A.No.145/2011. The I Additional District Judge,

Mancherial, after hearing both the parties, has rejected the

same by observing that both the suits i.e., O.S.No.15/1997 and

O.S.No.335/2009 are for different reliefs and the appeal against

both the orders are not pending trial, but are pending appeals

and therefore, the provisions of Section 10 of C.P.C. are not

applicable. Challenging the same, the present Civil Revision

Petition has been filed.

3. Learned counsel for the petitioners submitted the

subject matter in both the suits is one and the same and it is on

the basis of the judgment and decree in O.S.No.15/1997, that

the suit in O.S.No.335/2009 has been decreed and therefore,

the Civil Court ought to have awaited the decision of the Hon'ble

High Court in S.A.No.145/2011, because, if the said second

appeal is allowed in favour of the petitioners/appellants therein,

PMD,J CRP.No. 2401 of 2023

the judgment and decree in O.S.No.335/2009 would also have

to be vacated. In support of his contentions, Section 10 of

C.P.C. would apply to the facts of the case.

4. Learned counsel for the petitioner placed reliance

upon the judgment of Madras High Court in the case of

Radhika Konel Parekh Vs. Konel Parekh 1.

5. Learned counsel for the respondents, however,

supported the order of the lower Court and submitted that the

reliefs claimed in both the suits are different i.e.,

O.S.No.15/1997 was for declaration of title, whereas

O.S.No.335/2009 was for recovery of suit schedule property and

that though the suit schedule property is the same, the reliefs

are different and therefore, Section 10 of C.P.C. is not

applicable. Further, he placed reliance upon the judgment of the

Hon'ble Supreme Court in the case of British Indian

Corporation Limited Vs. Rashtra Co-Freight Carriers 2, and

also the Division Bench of the Andhra Pradesh High Court in

the case of Karri Satyanarayana and Others Vs. Pichika

Veerraju and Others 3.

1 AIR 1993 MADRAS 90 2 (1996) 4 SCC 748 3 1996 (1) ALD 616

PMD,J CRP.No. 2401 of 2023

6. Having regard to the rival contentions and the

material on record, this Court finds that both the suits i.e.,

O.S.No.15/1997 and also O.S.No.335/2009 are filed by the

plaintiffs against the defendants. Both the parties are one and

the same and the subject matter of the suit i.e., suit schedule

property is also one and the same. However, the reliefs claimed

in both the suits are different i.e., O.S.No.15/1997 is for

declaration of title while O.S.No.335/2009 is for recovery of

possession. O.S.No.15/1997 has been decreed and the first

appeal filed against the same has also been dismissed and the

second appeal is pending adjudication before the High Court.

The lower Court initially, O.S.No.335/2009 has Stayed the suit

and subsequently the Stay has been vacated. However, the

respondents have not challenged the same and only when the

appeal against the decree has been filed, the petitioners are

seeking Stay of all further proceedings pursuant to the decree in

O.S.No.15/1997. For the sake of completeness and ready

reference, the relevant provision of Section 10 of C.P.C. is

reproduced hereunder:

Section 10 of C.P.C.: 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,

PMD,J CRP.No. 2401 of 2023

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 30[India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of 31[India] established or continued by the 32[Central Government] 33[* * *] and having like jurisdiction, or before 34[the Supreme Court].

7. As rightly observed by the lower Court, the object

underlying Section 10 is to avoid two parallel trials on the same

issue by two Courts of concurrent jurisdiction and to avoid

recording of conflicting findings on issues, which are directly

and substantially in issue in previously instituted suit.

8. The Hon'ble Supreme Court in the case of Pukhraj

D.Jain & Other Vs. G.Gopalakrishna 4, has observed that mere

filing of an application under Section 10 C.P.C. does not in any

manner put an embargo on the power of the Court to examine the

merits of the matter. Further, the Hon'ble Supreme Court in the

case of Aspi Jal & Another Vs. Khushroo Rustom

Dadyburjor 5, has observed that the key words in Section 10 are

"the matter in issue is directly and substantially in issue in the

previously instituted suit" and the test for applicability of Section

10 of the Code is whether on a final decision being reached in the

4 (2004) 7 SCC 251 5 (2013) 4 SCC 333

PMD,J CRP.No. 2401 of 2023

previously instituted suit, such decision would operate as res-

judicata in the subsequent suit.

9. Therefore, it can be seen that the words used in the

provision are that suits are not with regard to the appeals. Once

the trial Court has proceeded with the trial of the suit and has

adjudicated thereon, the second suit on the very same subject

for the very same relief is prohibited. However, in this case

before this Court, both the suits are for different reliefs and

therefore, Section 10 of C.P.C. is not applicable. As held by the

Hon'ble Supreme Court in the case of British Indian

Corporation Limited (cited supra), where the suits are for

different reliefs and the cause of action in both the suits are

entirely different and there is no common issue directly or

substantially in both the suits, Section 10 of C.P.C. is not

applicable. Similar was the issue in the case before the Division

Bench of Andhra Pradesh High Court in the case of Karri

Satyanarayana (cited supra). The decisions relied upon by the

learned counsel for the petitioners are on totally different set of

facts and therefore, are not applicable. In view of the same, this

Civil Revision Petition is devoid of merits and it is accordingly

dismissed.

PMD,J CRP.No. 2401 of 2023

10. Accordingly, this Civil Revision Petition is

dismissed. There shall be no order as to costs.

11. Miscellaneous petitions, if any, pending in this Civil

Revision Petition, shall stand closed.

____________________________ JUSTICE P.MADHAVI DEVI

Date: 08.11.2023 bak

PMD,J CRP.No. 2401 of 2023

THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI

C.R.P.No. 2401 of 2023

Dated: 08.11.2023

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