Dismissed

Jayrambhai Nagjibhai Rabari v. Radhe Infrastructure and Projects -E Limited

Gujarat HC26 Jun 2018SCA/14765/2013

Case brief

AI extract

What is this about?

This Special Civil Appeal challenged an order staying a subsequent suit under Section 10 of the CPC due to a previously instituted suit. The High Court held that both suits involved the same agreement to sell and parties, satisfying Section 10 requirements, and dismissed the appeal.

What did the court decide?

The Special Civil Appeal was dismissed, the impugned stay order was upheld, and the rule was discharged.

Jayrambhai Nagjibhai Rabari Vs Radhe Infrastructure and… — Property and Title | Gujarat HC (2018)

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C/SCA/14765/2013 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 14765 of 2013

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MR.JUSTICE BIREN VAISHNAV

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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JAYRAMBHAI NAGJIBHAI RABARI

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Versus

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RADHE INFRASTRUCTURE AND PROJECTS -E LIMITED

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Appearance:

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MR HB DESAI(6113) for the PETITIONER(s) No. 1,2 MR NV SOLANKI(860) for the PETITIONER(s) No. 1,2 MR P A MEHD(3489) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

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Date : 26/06/2018

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ORAL JUDGMENT

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This petition under Article 227 of the Constitution of India is filed by the petitioners. Under challenge is the order dated 23.1.2013 passed by the learned 5^th Addl.

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C/SCA/14765/2013 JUDGMENT

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Senior Civil Judge, Mehsana below Exh.13. By the aforesaid order, learned trial Judge has allowed the application of the defendant under Section 10 of the Code of Civil Procedure and the petitioners' suit, viz. Special Civil Suit No.74 of 2011 is ordered to be stayed until final disposal of the Special Civil Suit No.65 of 2010 filed by the original defendants.

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Facts in brief are as under:

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2.1 The respondent herein filed Special Civil Suit No.65 of 2010 in the Court of learned Principal Senior Civil Judge, Mehsana. It is the case of the respondent, who is the plaintiff of that suit, that the present petitioners, original defendants in that suit had entered into an agreement to sell the land to the original plaintiff, respondent herein, on 18^th October, 2008. According to the plaintiff of Special Civil Suit No.65 of 2010, from the plaint on record, it appears that essentially it was case of the plaintiff of that suit that the defendant No.1 i.e. petitioner No.1, Jayrambhai Nagjibhai Rabari had agreed to sell the aforesaid land and therefore, a direction was sought for, in the suit against the defendant No.1 / petitioner No.1 herein for specific performance.

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2.2 In the suit so filed, panchnama was carried out and it was found that the possession was with the plaintiff. The plaintiff had filed an injunction application in which the trial Court had passed an order to draw a panchnama of the disputed property. The panchnama was

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C/SCA/14765/2013 JUDGMENT

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drawn on 8.5.2010. However, the Court Commissioner, while drawing such panchnama, observed that the present petitioners, who are the defendants in that suit, were not served. Since panchnama was drawn in their absence, they preferred application for preparing a fresh panchnama which was rejected by the trial Court. Against the order of the trial Court, the petitioners herein have preferred Special Civil Application No.14868 of 2010 and in such petition, the suit filed by the respondent, original plaintiff, is stayed. Just to complete the sequence of dates, Special Civil Suit No.65 of 2010 was filed on 1.5.2010. Once the application for drawing a fresh panchanam was rejected, the defendants of that suit, viz.the petitioners, approached this Court and this Court has, in the petition, stayed the suit by order dated 18.11.2010. So, the interim relief was confirmed staying the suit by an order dated 10.3.2011.

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2.3 The defendants of the suit, viz.Special Civil Suit No.65 of 2010, who are the petitioners before this Court, filed Special Civil Suit No.74 of 2011 in April, 2011. The present respondent was a defendant in that suit. It was the case of the petitioners in the suit that the disputed land in question, which was also subject matter of the suit filed earlier, was of the joint ownership of the petitioners, original plaintiffs of Special Civil Suit No.74 of 2011. Based on their pleadings, they were joint owners of the property in question. The petitioners in their suit prayed that the sale-deed entered into between the petitioners, original plaintiffs of that suit and the respondent, original

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C/SCA/14765/2013 JUDGMENT

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defendant, of Suit No.65 of 2010 be declared null and void. Further relief was prayed that the defendant, who was the plaintiff of Special Civil Suit No.65 of 2010 be restrained from taking over the possession from the plaintiffs.

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2.4 It was under these circumstances that respondent herein, who was the plaintiff of previously instituted suit, viz.Special Civil Suit No.65 of 2010 filed an application under Section 10 of the Civil Procedure Code, 1908 in the suit of the petitioners subsequently instituted by them, being Special Civil Suit No.74 of 2011 requesting the Court that the subsequent suit of the petitioners/ plaintiffs be stayed. The learned trial Judge, on perusal of the plaint in Special Civil Suit No.65 of 2010, viz. applicants of Section 10 application, who is a defendant in Special Civil Suit No.74 of 2011, was satisfied that the requirements of Section 10 was existing and therefore, petitioners' suit was stayed. This is the subject matter of challenge before this Court in the background of facts as aforesaid.

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Mr.N.V.Solanki, learned advocate appearing on behalf of the petitioners has assailed the order by which the petitioners' suit is stayed. Briefly stated the submissions are as under:-

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(i) Shri Solanki, learned advocate submitted that the order passed by the learned Trial Judge dated 23.1.2013 is without application of mind. It is his case that the learned trial Judge has not discussed whether the matter

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in issue in the suit of the petitioner, viz.Special Civil Suit No.74 of 2011 was also the matter directly and substantially in issue in the earlier instituted suit of the respondents, viz.Special Civil Suit No.65 of 2010.

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(ii) Mr.Solanki, learned advocate has further submitted that in the application filed under Section 10 of the Code of Civil Procedure, 1908, which was filed by the respondent on 20.6.2011, the respondent was guilty of suppression of facts. Though the application referred to the pending petition being Special Civil Application No.14668 of 2010, the applicant of Section 10 application, viz.the defendant in the suit, did not bring it to the notice of the trial Court that the previously instituted suit of the applicant under Section 10, was stayed by the High Court. It was, therefore, submitted by Mr.Solanki that had the Trial Court been put to notice that the previously instituted suit was already stayed, the trial Court possibly could not have passed the order staying the petitioners' suit.

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(iii) Shri Solanki, learned advocate further submitted that it was the plaintiff of the Special Civil Suit No.65 of 2010 at whose request, the suit was transferred to the same Court where the petitioners' suit was pending on an application made by the respondent herein. That application was made on 26.12.2011. According to Shri Solanki, the impugned order was passed on 23.1.2013 and on that date, the suit of the respondent was already transferred to the same Court and therefore, it was the duty of the defendants of the petitioners'

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C/SCA/14765/2013 JUDGMENT

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suit, to point out this fact to the learned Trial Judge.

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(iv) Mr.Solanki, learned advocate has further taken me through Special Civil Suit No.65 of 2010 filed by the respondent i.e. the previously instituted suit, leading through the averments made in the plaint and prayers in the suit. Shri Solanki, learned advocate contended that the relief essentially was prayed against the petitioner No.1, defendant No.1 in that suit. Bhanuben, defendant No.2 of that suit, who is the petitioner No.2 herein, was not mentioned in the suit and the relief of enforcement of agreement to sell was prayed for only against the petitioner No.1. In other words, though the parties to the suit, as is evident from the cause title, were the same, in absence of any specific prayer against the petitioner No.2, it cannot be said that the matter directly in issue was the same.

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(v) Shri Solanki, learned advocate, therefore, contended that the suit essentially filed by the respondent which was previously instituted was only for specific performance of a contract and that too only against the petitioner No.1.

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(vi) Taking me through the pleadings of subsequent suit filed by the petitioners Special Civil Suit No.74 of 2011, Shri Solanki, learned advocate contended that, that suit was based on joint ownership of the petitioners original defendants of Special Civil Suit No.65 of 2010. The prayer in such suit was for a declaration that the petitioners be declared as owners of disputed land. Such

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C/SCA/14765/2013 JUDGMENT

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prayer had nothing to do with the issue of specific performance of a contract and therefore, though parties to the suit and the subject matter of the suit are the same, the matter in issue in their suit which, was filed later, was regarding ownership whereas the previously instituted suit by the respondent was regarding specific performance of the contract and therefore, it could not be said that both the suits had the same matter in issue.

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(vii) Placing reliance on the decision of this Court in the case of M/s.Sohal Engineering Works V/s. Rustam Jehangir Vakil Mills Co. Ltd. reported in AIR 1981 Gujarat 110 , Shri Solanki, learned advocate assailed the order of the learned trial Judge. According to Shri Solanki, the working test is that if by the decision in the previously instituted suit the subsequent suit would fail, as a whole on the principal of res-judicata, subsequent suit must be stayed. According to Shri Solanki, though the parties to the suit, in question, are same and the subject matter is the same, the issue in both suits cannot be said to be directly and substantially the same, in view of the fact that whereas the suit of the present petitioner is for a declaration of an ownership, that of the plaintiff, respondent of the previously instituted suit, is for specific performance of contract.

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(viii) Shri Solanki has also relied on another decision rendered in the case of National Institute of Mental Health and Neuro Sciences V/s. C.Parameshwara reported (2005) 2 SCC 256 , to contend that the whole of

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C/SCA/14765/2013 JUDGMENT

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the subject matter and both the sides are identical, it is only in said circumstances that the Section 10 operates, which is not the same as in the case on hand.

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Mr.P.A.Mehd, learned advocate has appeared on behalf of the respondent at whose behest the suit of the petitioners has been stayed. His contentions are as under:-

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(i) It is his case that the learned Trial Judge has committed an error inasmuch as, on perusal of the plaint of the previously instituted suit, at the instance of the respondents, it is evident that the subsequently instituted suit by the petitioners is with regard to the same subject matter between the same parties and matters in issue are directly and substantially the same.

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(ii) Mr.P.A.Mehd, learned advocate has drawn my attention to the averments made in Special Civil Suit No.65 of 2010 and suggested that it was their case before the trial Court that the petitioners had entered into an agreement to sell dated 18^th October, 2008 and the respondent herein was, therefore, constrained to file the suit for specific performance of such contract. It was a specific pleading in the suit that the name of the petitioner No.2 was the defendant No.2, has been illegally entered into, in the revenue records on 3.3.2010 and when the petitioner No.1, defendant No.1 was questioned so as to get a clear title, petitioner No.1, defendant No.1 therein, did not respond.

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C/SCA/14765/2013 JUDGMENT

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(iii) Mr.Mehd, learned advocate has also drawn my attention to prayers in the plaint to suggest that apart from claiming a relief for specific performance against the petitioner No.1 an alternative prayer was made that the possession by the plaintiff be protected.

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(iv) Mr.Mehd, learned advocate has also taken me through the plaint of petitioners' suit, viz.Special Civil Suit No.74 of 2011. Drawing my attention to the averments made in the suit, he has suggested that in para No.3 of that suit, it is a specific case of the petitioners that their cause of action to file the subsequent suit occurred as a result of the agreement to sell dated 18^th October, 2008, and as such, the agreement to sell be declared as null & void. Further prayer was made in such subsequent suit that the plaintiffs, petitioners of that suit be permitted to enjoy their possession without encumbrances.

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(v) In other words, on a basic comparison of the suit, it was Mr.Mehd's case that the matter substantially and directly in issue between two suits was the agreement to sell dated 18^th October, 2008, whereas, the respondent, plaintiff of Special Civil Suit No.65 of 2010 had prayed for specific performance in Special Civil Suit No.65 of 2010, in the subsequent suit filed by the petitioners, namely, Special Civil Suit No.74 of 2011. The petitioners had prayed for declaring the said agreement to sell as null and void. In both the suits, the respective parties have claimed that their possession be protected. Evident, it was, therefore, that both the sides had matter which was directly and substantially in issue.

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C/SCA/14765/2013 JUDGMENT

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(vi) Shri Mehd, learned advocate drew my attention to the sequence of dates. According to him, the subsequent suit was filed by the petitioners in April, 2011. This was after they had obtained stay of proceedings on 10^th March, 2011, in the suit filed by the respondent herein. Once the High Court had stayed the proceedings in Special Civil Suit No.65 of 2010 and in order to undertake an exercise of making a fresh panchnama, the suit, viz. Special Civil Suit No.74 of 2011 was filed within a month after having obtained stay so that under the guise of fresh suit, a panchnama could be made.

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Having considered the submissions made by learned counsel for the respective parties, in my opinion, following undisputed facts emerge on record.

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(i) Special Civil Suit No.65 of 2010 was filed by the respondent herein on 1.5.2010.

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(ii) Special Civil Suit No.74 of 2011 was filed by the petitioners herein on April, 2011.

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(iii) Admittedly, the parties to the suit and the subject matter of the suit is the same. The learned Trial Judge has rightly observed that for the purposes of Section 10, in order to avoid conflict of judicial decision, what needs to be seen by the petitioners from the facts is that there must be two suits between the same parties, previously instituted suit must be pending either in the same Court or any other competent Court.

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C/SCA/14765/2013 JUDGMENT

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The bone of contention between the two counsels is that in both the suits, the matter in issue directly and substantially, is not the same or substantially not the same. It is under this circumstance that we need to dwell upon the plaint of two suits.

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The previously instituted suit, viz.Special Civil Suit No.65 of 2010 filed by the respondent herein is for specific performance, i.e.one agreement to sell dated 18^th October, 2008. It is the case of the plaintiff / respondent herein that the petitioner No.1 had agreed to sell the land and since such agreement was not being honored, the respondent was constrained to file such suit. The petitioner No.2 is shown as defendant No.2 in the array of the parties. No specific relief is prayed for against the defendant No.2/ petitioner No.2 herein. The conjoint reading of the plaint in context of the prayers would suggest that in order to substantially succeed in such a suit for specific performance, there is an apprehension by plaintiff/ respondent herein that in order to enjoy fruits of the suit, the defendant No.1/ petitioner No.1 has transferred through a wrong revenue entry, the title/ownership in favour of the defendant No.2, petitioner No.2 herein.

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It is in this context that alternative prayer is made that the possession of the respondent herein be protected.

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Perusal of the plaint of Special Civil Suit No.74 of 2011, which is the subsequent suit filed by the

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petitioners, though based on the joint ownership claimed by them of the same disputed land, in question, it is clear that it proceeds to challenge the legality or the existence of the very agreement to sell i.e. agreement to sell dated 18^th October, 2008, which the respondent of the previously instituted the suit had sought enforcement of.

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Evident from the reading, from cause of action of that suit and the plaint suggest that the entire genesis of that suit is the agreement to sell dated 18^th October, 2008, which is the subject matter of the previously instituted suit at the hands of the respondent.

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The plaint of subsequently instituted suit, in its prayer also seeks a declaration that the very agreement to sell of his land, be declared as null and void.

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Even herein, what is prayed for, is to protect the possession of the plaintiff of the subsequent suit.

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Perusal of Section 10 of CPC would suggest that 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, or between the parties under whom they or any of them claim litigating under the same title. Apparently, on perusal of the two plaints, it is evident that the respondent's previously instituted suit is with respect to the same subject matter and the matter in issue between the same parties, is with regard to the agreement to sell dated 18^th October, 2008. It may be that

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in the previously instituted suit, a declaration is prayed for only against the defendant No.1/ petitioner No.1 herein. However, the pleadings of the plaint would suggest that the respondent plaintiff of that suit has also assailed the title of petitioner No.2- defendant No.2 of that suit. I, therefore, would agree with the submissions of Mr.Mehd that learned trial Judge has not committed any error in observing that, having perused the record of both the suits, required conditions of Section 10 are fulfilled.

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Shri Solanki, at the outset, by relying on a judgment of the Gujarat High court in the case of M/s. Sohal Engineering Works (supra) , contended that the working test is that if by the decision of the previously instituted suit the subsequent suit would fail as a whole on the principle of res-judicata, the subsequent suit must be stayed. This condition, which in my opinion, is satisfied in the facts of the case.

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Section 10 deals with the issue of res-judicata and would suggest that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they are litigating. In other words, Sections 10 and 11 are substantially the same. Explanation IV would suggest that any matter which might and ought to have been made ground of defence or attached in such former suit shall be deemed to have been a matter directly or substantially in issue in such suit.

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Perusal of the pleadings in the previously instituted suit of the respondent herein would suggest that his suit failed technically. He has made out a specific ground that defendant No.1/ petitioner No.1 herein has surreptitiously entered the name of defendant No.2 / petitioner No.2 in the revenue records in the year 2010 so as to obviate the plaintiff getting clear title. Though, therefore, in the relief clause, essential declaration may have been prayed for, against the petitioner No.1 only, explanation IV of Section 11 of the CPC would satisfy the test of Section 10 inasmuch as, finding either way in the suit is to operate as resjudicata in subsequent suit i.e. suit of the petitioners.

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On these grounds, therefore, I see no reason to interfere with the order dated 23.1.2013 passed below Exh.13 in Special Civil Suit No.74 of 2011 by the learned Senior Civil Judge, Mehsana. The petition is accordingly dismissed. Rule is discharged. Interim relief stands vacated.

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(BIREN VAISHNAV, J)

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(ashish)

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Jayrambhai Nagjibhai Rabari v. Radhe Infrastructure and Projects -E Limited

Case brief

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Jayrambhai Nagjibhai Rabari v. Radhe Infrastructure and Projects -E Limited

Case brief

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