Smt. Iswarti Kalai vs Sri Debsadhan Jamatia
2021 Latest Caselaw 193 Tri

                              1




             THE HIGH COURT OF TRIPURA
                   AGARTALA
                         CRP 21 of 2020
Smt. Iswarti Kalai,
daughter of Sri Surendra Kalai, wife of Md. Jahirul Islam,
resident of Khamarpara, P.O. Taidu-799101, P.S. Taidu,
District- Gomati, Tripura
                                                                ... Petitioner
         -    Versus -

1.    Sri Debsadhan Jamatia,
son of unknown, resident of Rambabu para, Taidu,
P.O. Taidu-799101, P.S. Taidu, District- Gomati Tripura
2.    Smt. Puspa Kalai,
wife of Debsadhan Jamatia, resident of Rambabu para, Taidu,
P.O. Taidu-799101, P.S. Taidu, District- Gomati Tripura
3.    Sri Bishal Jamatia,
son of Sudro Kumar Jamatia, resident of Rambabu para, Taidu,
P.O. Taidu-799101, P.S. Taidu, District- Gomati Tripura
4.    Sri Rangia Kalai,
son of late Radha charan Kalai, resident of Rambabu para, Taidu,
P.O. Taidu-799101, P.S. Taidu, District- Gomati Tripura
5.    Sri Ranjan Kalai,
son of Sri Rangia Kalai, resident of Rambabu para, Taidu,
P.O. Taidu-799101, P.S. Taidu, District- Gomati Tripura
                                                       ... Respondents

For Appellant(s) :                Mr. DK Das Choudhury, Advocate
For Respondent(s):                Mr. KN Bhattacharjee, Sr. Advocate
                                  Mr. P. Saha, Advocate
Date of hearing & delivery
of Judgment & Order :      18.02.2021
Whether fit for reporting:        No

             HON'BLE MR. JUSTICE ARINDAM LODH
                     JUDGMENT(ORAL)

Heard Mr. DK Das Choudhury, learned counsel for the petitioner. Also heard Mr. KN Bhattacharjee, learned senior counsel assisted by Mr. P. Saha, learned counsel for the respondents.

2. This revision petition arises out of the order dated 20.02.2020 passed in case No. Civil Misc. 79 of 2019 arising out of T.S. 25 of 2019 by learned Civil Judge, Senior Division, Gomati Judicial District, Udaipur

3. One Ranjan Kalai, respondent no. 5 herein, had instituted the suit bearing no. T.S. 15 of 2019 in the court of the learned Civil Judge, Senior Division, Court no. 1, Gomati, Tripura claiming his right, title, interest over the suit land against Smt. Iswarti Kalai, the petitioner herein, as defendant. Smt. Iswarti Kalai after receipt of notice appeared before the learned court and filed written statement.

4. During proceeding of the said suit no. T.S. 15 of 2018, Smt. Iswarti Kalai had filed a civil suit bearing no. T.S. 25 of 2019 claiming that she had been dispossessed by the respondents of the instant case who had instituted the former suit being T.S. 15 of 2018. Having receipt of the notice of T.S. 25 of 2019, the respondent no. 5, Sri Ranjan Kalai had filed an application under Section 10 of the Code of Civil Procedure, 1908 praying for staying the further proceeding of T.S. 25 of 2019 for the reason that the subject matters of both the suits are same and identical. The said application was also resisted by the present petitioner, Smt. Iswarti Kalai.

4. The learned Civil Judge, Senior Division, Court no. 1, Gomati, Tripura heard the matter at length on the application filed under Section 10 CPC and vide order dated 20.02.2020 held that the subject matters of both T.S. 15 of 2018 and T.S. 25 of 2019 are same and identical. Having held so, the learned Judge had stayed the further proceeding of T.S. 25 of 2019 till disposal of the previously instituted suit being T.S. 15 of 2018. This order dated 20.02.2020 passed in Civil Misc. 79 of 2019 is under challenge before this court.

5. By way of filing the present petition under Article 227 of the Constitution of India, the petitioner is seeking to exercise the power of superintendence of this court.

6. Mr. DK Das Choudhury, learned counsel for the petitioner has submitted that the plot nos. involved in T.S. 15 of 2018 are not same and identical as mentioned in schedule of case no. T.S. 25 of 2019 and for this reason the subject matters of both the suits cannot be same and identical.

7. On the other hand, Mr. KN Bhattacharjee, learned senior counsel assisted by Mr. P. Saha, learned counsel for the respondents have submitted that the subject matters of both the suits are similar and identical and it is the settled principle of law that in a civil suit plaintiff is to establish his case and defendant is to establish his case.

8. After perusal of the record, it transpires that the plaintiff in T.S. 15 of 2018 has claimed for declaration of right, title and interest over the scheduled plot of land by dint of registered sale deed no. I-103. On the other hand, the petitioner being the defendant in T.S. 15 of 2018 has claimed her right, title and interest over the scheduled plot of land mentioned in schedule of T.S. 15 of 2018 and, further claimed that she had been dispossessed from this plot of land by the plaintiff of T.S. 15 of 2018. As such, the petitioner being plaintiff in T.S. 25 of 2019 had claimed for recovery of possession from the suit land mentioned in the schedule of the plaint of T.S. 15 of 2018 instituted by the respondent no.5 in this petition and the plaintiff of T.S. 15 of 2018.

9. I have considered the submission of both the learned counsel appearing for the parties to the lis and have perused the records annexed with this petition.

10. Having gone through the records, I find the subject matters of both the suits are similar and identical. Though plot numbers are different but, the boundaries are found to be same. The plaintiff in T.S. 15 of 2019 has claimed declaration of his right, title , interest and confirmation of possession over the suit land wherein the petitioner in her suit no. T.S. 25 of 2019 has claimed her right, title and interest over the similar plot of land and she has prayed for recovery of possession due to her alleged dispossession from the suit property by the present respondent.

11. For convenience, Section 10 of Code of Civil Procedure, 1908 may be reproduced here-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 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.".

12. Keeping in mind, the aforesaid provision, I find that in both the suits, the core point that has to be decided is possession of respective parties on the date of institution of the suit for which in both the suits the matters directly and substantially are same and identical. Moreover, if the decision of T.S. 15 of 2019 is rendered for or against the parties that final decision could operate as res judicata for the subsequent suit in T.S. 25 of 2019.

13. Having viewed so, I do not find any error or infirmity in the order dated 20.02.2020 passed in case No. Civil Misc. 79 of 2019 arising out of T.S. 25 of 2019 by learned Civil Judge, Senior Division, Gomati Judicial District, Udaipur and it is not a fit case to exercise the power of

superintendence of this court under Article 227 of the Constitution of India. Accordingly, the instant revision petition stands dismissed.

Pending application(s), if any, also stands disposed of.

JUDGE

Saikat