Dismissed¶45

Bidhan Harlalka v. Sarla Harlalka and 2 Ors.

Gauhati HC8 Mar 2026CRP/16/2024

Case brief

AI extract

What is this about?

Section 10 CPC stay of suit; res judicata test; identity of matter in issue; three tests (parties, matter in issue, previously instituted suit); cancellation of sale deed suit versus ejectment and arrear rent suit; Title Suit No.293/2021; Title Suit No.14/2022; Petition No.1511/2022; Misc.(J) Case No.511/2022; Article 227 Constitution of India; Gauhati High Court; CRP/16/2024; Munsiff No.4 Kamrup(M) Guwahati; Aspi Jal v. Khushroo R. Dadyburjor (2013) 4 SCC 333; NIMHANS v. C. Parameshwara (2005) 2 SCC 256; Biswanath Paul v. Ahibhusan Chakraborty 2018 (2) GLT 976; Subho Ram Kalita v. Dharmeswar Das Koch AIR 1987 Gau 73; revision dismissed; no perversity; parties to bear own costs.

What did the court decide?

No relief to the petitioner; revision petition dismissed, parties left to bear their own costs. ¶45

Bidhan Harlalka Vs Sarla Harlalka and 2 Ors. — Writ and Judicial Review | Gauhati HC (2026)

What the court decided

AI extract

Outcome

No relief to the petitioner; revision petition dismissed, parties left to bear their own costs.

¶45

Issue for consideration

Whether the petition under Section 10 of the CPC for stay of Title Suit No.14/2022 was rightly dismissed by the learned Trial Court, i.e., whether the matter in issue in Title Suit No.14/2022 is directly and substantially in issue in the previously instituted Title Suit No.293/2021. +1 more

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Court's answer

Three key tests are required to be satisfied for invoking Section 10 of the CPC: (i) identity of the parties; (ii) identity of the matter in issue; and (iii) a previously instituted suit.

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Ratio / Principle

Though the parties and the properties involved in Title Suit No.293/2021 and Title Suit No.14/2022 are identical, the subject-matter and the cause of action in both the suits are different; applying the test laid down in Aspi Jal, the decision in Title Suit No.293/2021 would not operate as res judicata in Title Suit No.14/2022.

¶41

Key takeaways

The impugned order passed by the learned Trial Court rejecting the application under Section 10 of the CPC is based on sound principle of law.ratio¶28
The impugned order does not suffer from any perversity requiring interference; accordingly, the revision petition stands dismissed with the parties left to bear their own costs.ratio¶45

Detailed headnote1 paragraphs

Civil Revision Petition (CRP/16/2024) under Article 227 of the Constitution of India challenging the order dated 25.05.2023 of the learned Munsiff No.4, Kamrup(M), Guwahati, in Misc.(J) Case No.511/2022 (arising out of Title Suit No.14/2022), dismissing Petition No.1511/2022 under Section 10 of the Code of Civil Procedure, 1908 for stay of Title Suit No.14/2022. Petitioner had earlier instituted Title Suit No.293/2021 for cancellation of sale deed dated 20.09.2020 executed by Vishwanath Goenka in favour of Sarla Harlalka; the respondents' subsequent Title Suit No.14/2022 was for ejectment and arrear rent. Parties and property identical, but subject-matter and cause of action different. Applying the test in Aspi Jal v. Khushroo R. Dadyburjor, (2013) 4 SCC 333 (drawing on National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, (2005) 2 SCC 256), the decision in the earlier suit would not operate as res judicata in the later suit; Section 10 CPC not attracted. Impugned order based on sound principle of law and free from perversity; the decision in Biswanath Paul v. Ahibhusan Chakraborty, 2018 (2) GLT 976 fortified the respondents' submission, while Subho Ram Kalita v. Dharmeswar Das Koch, AIR 1987 Gau 73 did not advance the petitioner's argument. Revision petition dismissed, parties to bear their own costs.

Page No.# 1/6

GAHC010179872023

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP/16/2024

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BIDHAN HARLALKA

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PROPRIETOR OF M/S UJALA, S.S. ROAD, FANCY BAZAR, GUWAHATI781001, DIST. KAMRUP(M), ASSAM

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VERSUS

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SARLA HARLALKA AND 2 ORS W/O- SRI PAWAN KUMAR HARLALKA, R/O- KRISHNA KUNJ, A.M. ROAD, SUHAGPUR, MANIPURI BASTI, NEAR ARYA HOSPITAL, PALTANBAZAR, GHY-781001, DIST. KAMRUP(M), ASSAM

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2:PAWAN KUMAR HARLALKA PROPRIETOR OF M/S B.P. STORE C/O- M/S B P STORE S.S. ROAD FANCY BAZAR GHY-781001 DIST. KAMRUP(M) ASSAM 3:VISHWANATH GOENKA S/O- LATE RADHA MOHAN GOENKA C/O- VISHWARATAN HOTEL A.T. ROAD P..S PALTANBAZAR GHY-781001 DIST. KAMRUP(M) ASSA

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Advocate for the Petitioner : MR. M AGARWALLA, MS P GOGOI

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Advocate for the Respondent : MR B SHARMA (r-1,2,3), MR. M HASSAN (R-3),MR S SHARMA

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(r-1,2)

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BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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09.03.2026

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Heard Mr. M. Agarwalla, learned counsel for the petitioner and also heard Mr. B. Sharma, learned counsel for the respondents.

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2. In this petition, under Article 227 of the Constitution of India, the petitioner has challenged the order dated 25.05.2023 passed by the learned Munsiff No.4, Kamrup(M), Guwahati, in Misc.(J) Case No.511/2022, arising out of Title Suit No.14/2022. It is to be noted here that vide impugned order dated 25.05.2023, the learned Munsiff No.4, Kamrup(M), Guwahati, has dismissed the Petition No.1511/2022 filed by the petitioner under Section 10 of the Code of Civil Procedure, 1908 for stay of the Title Suit No.14/2022.

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3. Mr. Agarwalla, learned counsel for the petitioner submits that the petitioner herein has instituted one title suit, being Title Suit No.293/2021 praying for cancellation of sale deed dated 20.09.2020, which was executed by the proforma defendant No.2, namely, Shri Viswanath Goenka in favour of the plaintiff, namely, Smt. Sarla Harlalka in respect of Schedule 'A' property and after institution of the said title suit, the respondents herein have filed another title suit, being Title Suit No.14/2022, which is pending before the Court of learned Munsiff No.4, Kamrup(M) at Guwahati, for ejectment and arrear rent and the parties involved in both the suits are same and it relates also to the same property and as such, under Section 10 of the CPC, the subsequent suit has to be stayed and accordingly, the petitioner herein has filed one petition, being Petition No.1511/2022 before the Court of learned Munsiff No.4, Kamrup(M), Guwahati, but the same was dismissed vide impugned order dated 25.05.2023. According to Mr. Agarwalla, the

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impugned order is illegal and arbitrary and the learned Trial Court has erroneously dismissed the petition and on such count, he has contended to allow this petition by setting aside the impugned order. In support of his submission, Mr. Agarwalla has also referred to a decision of a Division Bench of this Court in the case of Subho Ram Kalita (Deceased by LRs) & Ors. v. Dharmeswar Das Koch & Ors. , reported in AIR 1987 Gau 73 .

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4. Per contra, Mr. Sharma, learned counsel for the respondents submits that though the Title Suit No.293/2021 and the Title Suit No.14/2022 are between the same parties, yet, the subject-matters of both the suits are different. He submits that in Title Suit No.293/2021, the subject-matter is for cancellation of sale deed dated 20.09.2020, whereas the subject-matter of Title Suit No.14/2022, which was filed by the respondents herein, is for ejectment and recovery of arrear rent and referring to a decision of a Coordinate Bench of this Court in the case of Biswanath Paul v. Ahibhusan Chakraborty , reported in 2018 (2) GLT 976 , he submits that the aforementioned decision of the Coordinate Bench of this Court squarely covers the case of the present petitioner and since the subject-matter of both the suits are different, the provision of Section 10 of the CPC cannot be invoked.

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5. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order dated 25.05.2023.

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6. It appears that the learned Trial Court has dismissed the petition under Section 10 of the CPC, being Petition No.1511/2022, filed by the present petitioner on the ground that the subject-matter of two proceedings are entirely distinct and different and one suit is related to validity of termination of tenancy and payment of arrear rent and the other suit is for declaration of title and as such, in both the circumstances, the suits are not substantially identical and as such, Section 10 of the CPC does not attract at all for staying proceeding of the present suit and thereafter, dismissed the same.

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7. While the impugned order passed by the learned Trial Court is examined in the light

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of the given facts and circumstances on the record and also in view of the proposition of law, this Court is of the view that the impugned order, so passed by the learned Trial Court rejecting the application under Section 10 of the CPC is based on sound principle of law.

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8. It is not in dispute that the subject-matter in both the suits are different, while in the Title Suit No.293/2021 the subject-matter is for cancellation of the sale deed dated 20.09.2020 and the subject-matter of Title Suit No.14/2022 is completely different, which is in relation to ejectment and recovery of arrear rent.

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9. It is to be noted here that Section 10 of the CPC deals with stay of suit, which read as under:-

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“ 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.

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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. ”

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10. Thus, from a perusal of Section 10 of the CPC, it appears that three key test are required to be satisfied with for invoking the provision of Section 10 are as follows:

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(i) Identity of the parties.

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(ii) Identity of matter in issue.

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(iii) Previously instituted suit.

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11. The phrase – ‘matter in issue is directly and substantially in issue’ has been dealt with by the Hon’ble Supreme Court in Aspi Jal & Anr. vs. Khushroo R.

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Page No.# 5/6

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Dadyburjor , reported in (2013) 4 SCC 333 , wherein it has been clarified that identity of the matter in issue is determined by applying the test of whether a final decision in the earlier suit would operate as res judicata in the later suit. In holding so, Hon’ble Supreme Court has drawn premises from its earlier decision in National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara , reported in (2005) 2 SCC 256 , in which it has been held as follows: (SCC pp. 259-60, para 8)

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“ 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 Page No.# 7/8 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 subjectmatter in both the proceedings is identical. ”

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12. In the case in hand, though the parties are identical and the properties involved are also identical, yet, the subject-matter and the cause of action in both the suits are different and applying the test laid down in the case of Aspi Jal (supra) , this Court is of the view that the decision in the Title Suit No.293/2021 would not operate as a res

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judicata in case of the Title Suit No.14/2022, as the cause of action and the subjectmatter are entirely different in both the suits.

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13. This Court has considered the submission of learned counsel for both the parties and also gone through the case laws, and finds sufficient force in the submission of Mr. Sharma, learned counsel for the respondents and the decision in Biswanath Paul (supra) fortified his submission. On the other hand, this Court finds the submission of Mr. Agarwalla, learned counsel for the petitioner, devoid of merit and the decision referred by him would not advance his argument in view of the discussion and finding recorded herein above.

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14. Thus, the impugned order dated 25.05.2023 rejecting the Petition No.1511/2022 under Section 10 of the CPC filed by the present petitioner cannot be said to be suffered from any perversity requiring any interference of this Court and accordingly, this revision petition stands dismissed, leaving the parties to bear their own cost.

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Sd/- Robin Phukan JUDGE

¶47

Comparing Assistant

Bidhan Harlalka v. Sarla Harlalka and 2 Ors.

Case brief

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Bidhan Harlalka v. Sarla Harlalka and 2 Ors.

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