Dismissed

Bhau Ram v. Kamla Devi

Himachal Pradesh HC6 Nov 2019CMPMO/212/2018

Case brief

AI extract

What is this about?

Two suits were filed over land claimed under a Will. The subsequently instituted suit was decreed; the defendant then applied under Section 10 CPC to stay his appeal in that suit until the previously instituted suit was decided. The application was rejected. The High Court upheld the rejection, holding that Section 10 CPC permits stay only of the trial of a suit, not of appellate proceedings.

What the court decided

AI extract

Bhau Ram Vs Kamla Devi — Succession and Inheritance | Himachal Pradesh HC (2019)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

CMPMO No.212 of 2018

¶3

Judgment Reserved on : 18.9.2019 Date of Decision: 6^th November, 2019

¶4

__________________ ________________________________________ Bhau Ram …….Petitioner Versus Kamla Devi and others …..Respondents __________________________________________________________

¶5

Coram:

¶6

Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?¹ Yes.

¶7

For the Petitioner : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. For the Respondents: Mr. G.C.Gupta, Senior Advocate with Ms. Meera Devi, Advocate, for respondent No.1. Mr. Vinay Mehta, Advocate, for LRs of respondent No.3. __________________________________________________________ Sandeep Sharma, Judge

¶8

Being aggrieved and dissatisified with the order dated 22.8.2018 passed by learned District Judge (Forest) Shimla, District Shimla, H.P.,in CMP No.1-S/6 of 2017/16 in Civil Appeal No.2-S/3 of 2017/16, titled as Bhau Ram vs. Smt. Kamla Devi and others, whereby an application under

¶9

Section 10 of the Code of Civil Procedure having been filed by

¶10

1 Whether the reporters of the local papers may be allowed to see the judgment?

¶11

¶12

the petitioner (hereinafter referred to as the defendant)

¶13

praying therein to stay the proceedings in appeal filed by him till the time Suit bearing No.51/1 of 2013/97 is finally decided, came to be dismissed, defendant has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India.

¶14

2. For having birds eye view, the facts which are relevant for the adjudication of the controversy at hand are that the land which came to be subject matter of two suits i.e Civil Suit No.51/1 of 2013/1997 and Civil Suit No.105/1 of 2002/2003 having been filed by the respondent (hereinafter referred to as the plaintiff), originally belonged to the person namely, Smt. Reshmu Devi wife of Sh. Shankar Lal, R/o Village Hiranagar. Smt. Reshmu Devi stated to be the owner of 9-9 bighas of land situate at Mauja Badhai, Tehsil and District Shimla, H.P., as well as land measuring 11-18 bighas situate at village Shilawat, Tehsil Rohru, District Shimla, H.P., having inherited from her husband after his death, died on 25^th September, 1985, whereafter original plaintiff Sh. Attar Singh instituted suit bearing No.51/1 of

¶15

¶16

2013/1997 in the Court of learned Civil Judge (Senior

¶17

Division), Shimla, H.P. , qua the land situate in Shimla District, claiming therein that Smt. Reshmu Devi had executed the Will dated 12.9.1985 in his favour as well as his father Sh. Hira Singh. Plaintiff claimed that his father Sh. Hira Singh also died in the year, 1993 and as such, he and his brother Sh. Janak Singh (deceased) whose legal representatives are already on record as respondent No.3 are in possession of land on the basis of aforesaid Will dated 25.09.1985. During the pendency of aforesaid suit, plaintiff instituted another suit bearing No.105/1 of 2002/2003 in the Court of learned Sub Judge, Court No.2, Rohru, District Shimla, H.P., claiming therein similar reliefs as claimed in the previously instituted suit with regard to land of late Smt. Reshmu Devi situate in Village Shilawat, Tehsil Rohru, District Shimla, H.P.

¶18

3. Suit bearing No. 51/1 of 2013/1997 instituted in the Court of learned Civil Judge (Senior Division) Shimla, District Shimla, H.P., was dismissed vide judgment dated 22.3.2014. However, learned Additional District Judge-II, Shimla vide

¶19

¶20

judgment dated 2.6.2015 set-aside the aforesaid judgment and decree in the appeal having been filed by the plaintiff and remanded the case back to the learned trial Court.

¶21

4. Defendant being aggrieved and dissatisfied with the aforesaid judgment passed by learned Additional District Judge (II), Shimla, preferred an appeal before this Court and same is still pending adjudication. On the other hand, second suit bearing No.105/1 of 2002-2003 filed by the plaintiff in the Court of learned Civil Judge(Junior Division) Court No.2, Rohru, came to be decreed vide judgment dated 6.1.2016 in favour of the plaintiff.

¶22

5 . Defendant being aggrieved and dissatisfied with

¶23

the aforesaid judgment passed by learned Civil Judge(Junior Division) Court No.2, Rohru, District Shimla, H.P., preferred an appeal in the Court of learned District Judge (Forest ) Shimla, H.P. Before such appeal could be decided on merits, defendant filed an application under Section 10 of CPC, pleading therein that since dispute in both the suits i.e. Civil Suit No. 105/1 of 2002-2003 and Civil Suit No. 51/1 of 2013/1997 is with regard to validity of the Will dated 12.9.1985

¶24

¶25

alleged to have been executed by Smt. Reshmu Devi in favour

¶26

of the original plaintiff and his late father, subsequent suit instituted in the Court at Rohru is liable to be stayed. Defendant by way of an application, as referred hereinabove, claimed that since appeal has arisen out of the judgment passed in the subsequent suit bearing No. 105/1 of 2002-2003, proceedings in the appeal may be stayed. Aforesaid application came to be resisted on behalf of the plaintiff, who claimed that cause of action in both the suits are altogether different and at present there is no “suit” pending in the trial Court and as such, Section 10 of CPC cannot be invoked at this stage by defendant. Plaintiff also denied that matter/ issue is directly and substantially the same in both the suits.

¶27

6 . Learned District Judge (Forest) Shimla, District Shimla, H.P., vide impugned order dated 22.8.2018 dismissed the application holding that the application is not maintainable as the proceedings in the appeal cannot be stayed by invoking Section 10 of CPC. In the aforesaid backdrop, defendant has approached this Court in the instant proceedings.

¶28

¶29

7. I have heard learned counsel for the parties and

¶30

gone through the record carefully.

¶31

8 . Precisely, the question which needs to be decided in the instant proceedings is “whether an application under Section 10 CPC can be filed/entertained at the appellate stage, praying therein to stay the appeal arising out of the judgment passed by the trial Court in the subsequently instituted suit on the ground that previously instituted suit is still pending adjudication. Another question which arises for determination is “whether proceedings in the appeal can be termed/considered to be “trial of the suit’ as referred in Section 10 CPC.

¶32

9 . Before ascertaining the correctness of submissions/ arguments made/raised on behalf of the learned counsel representing the parties vis-a-vis reasoning assigned by the learned Court below while passing the impugned order, there are certain undisputed facts, which are also required to be taken note of. Defendant never raised plea with regard to pendency of previously instituted suit bearing No. 51/1 of 2013/1997 in the written statement filed in the subsequently

¶33

¶34

instituted suit No..105/1 of 2002-03 and no specific issue with regard to maintainability ever came to be framed by the Court at Rohru. It also emerge from the record that during the pendency of subsequently instituted suit No.105/1 of 2002-03, plaintiff had filed an application under Section 10 of CPC in the Court of Civil Judge, Rohru, praying therein to stay the suit specifically averring therein that suit having same subject matter inter se same parties is pending adjudication before the learned Sub Judge, Court No.4, Shimla. Defendant filed reply to such application and opposed the prayer made on behalf of the plaintiff on the ground that suit having been filed by the plaintiff deserves dismissal as a whole on account of candid admission made by the plaintiff that suit having same subject matter is pending adjudication before Sub Judge, Court No.4, Shimla. However, record reveals that vide order dated 13.3.2003 passed by Sub Judge, Court No.2, Rohru, aforesaid application filed by the plaintiff was dismissed as withdrawn. But interestingly, defendant neither filed an appeal against the aforesaid order nor he chose to file application at that stage, praying therein to stay the suit. Rather defendant

¶35

¶36

chose to contest the suit filed by the plaintiff on its own merits.

¶37

Though, defendant had filed an application under Order 7 Rule 11 CPC for rejection of plaint, which was allowed vide order dated 17.11.2004, but subsequently this order was set aside in appeal filed by the plaintiff. Judgment dated 31.7.2009 passed in Civil Appeal No.90-S/13 of 2005 by learned District Judge (Forest) Shimla was further upheld in RSA No. 501 of 2009 having been filed by the defendant. After passing of aforesaid judgment dated 20.9.2010 by this Court in RSA No.501 of 2009, learned Civil Judge (Junior Division) Court No.2, Rohru, heard the suit on merits and vide judgment and decree dated 6.1.2006 decreed the suit of the plaintiff. Against the aforesaid judgment, defendant preferred an appeal in the Court of learned District Judge (Forest) Shimla and during the pendency of the same filed an application under Section 10 of CPC (Annexure P-5), praying therein to stay the appeal till the time previously instituted suit bearing No. 51/1 of 2013/1997 is decided finally.

¶38

¶39

10. Mr. G.D.Verma, learned Senior counsel

¶40

representing the petitioner, strenuously argued that impugned order passed by the learned Court below is not tenable because appeal is nothing but continuation of the original proceedings and as such, appeal arising out of judgment rendered by Court at Rohru in the subsequent suit filed by the plaintiff ought to have been stayed by the Court till the time earlier suit filed by the plaintiff pending adjudication in the Court at Shimla is finally decided. Mr. Verma, while making this Court to peruse the records made serious attempt to persuade this Court to agree with his contention that since in both the suits controversy is with regard to Will alleged to have been executed by Smt. Reshmu Devi bequeathing her property in favour of the plaintiff and his father, it cannot be said that cause of action in both the suits is different, rather issue in question is directly and substantially the same, hence, application having been filed by the plaintiff under Section 10 of CPC deserves to be allowed. Mr. Verma, further contended that word “suit” used under Section 10 CPC also applies to

¶41

the proceedings in the appeal. He further contended that

¶42

¶43

word “trial” would also mean proceedings in the appeal.

¶44

Lastly, Mr. Verma contended that once factum with regard to pendency of earlier suit inter se parties on the same issue had come to the knowledge of Court, it ought not have permitted plaintiff to withdraw the application filed by him under Section 10 CPC, rather it of its own motion should have proceeded to stay the subsequently instituted suit pending adjudication at Rohru. He further contended that plea as available under Section 10 CPC can be raised at any stage and Rule of Procedure should not thwart cause of justice and wrong should not be allowed to be perpetuated.

¶45

11 . To the contrary, Mr. G.C.Gupta, learned Senior Counsel representing the defendant, supported the impugned order passed by the learned Court below and vehemently argued that provision of Section 10 of CPC are not applicable when suit stands finally decided. Mr. Gupta, further contended that record clearly reveals that at no point of time plea of “Res sub-judice” ever came to be raised on behalf of the defendant in the written statement filed by him in the

¶46

subsequently instituted suit and as such, application filed at

¶47

¶48

belated stage rightly came to be rejected. Mr. Gupta, further

¶49

contended that at the time of filing application under Section 10 of CPC no suit was pending adjudication before the trial Court and as such, Court below rightly rejected the application.

¶50

12. At this stage, it would be apt to reproduce

¶51

Section 10 of CPC herein:-

¶52

“ 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.”

¶53

13. The language of Section 10 of CPC, as has been reproduced hereinabove, is imperative. It provides that when the matter in both the suits, which are between the same parties, litigating under the same title, is directly and substantially the same, then the Court shall not proceed with the “trial” of subsequently instituted suit. It further provides that when it is brought to the notice of the “trial

¶54

¶55

Court” that there is a previously instituted suit between the same parties and the matter is directly and substantially the same, provision contained under Section 10 of CPC being imperative makes it mandatory for the Court to stop further proceedings in the subsequently instituted suit. Bare perusal of provision contained in the aforesaid provisions of law provides that application is maintainable only before the Court where the subsequent suit is “ pending”. Application, as referred above, can only be filed during the pendency of the suit and definitely not after the trial comes to an end.

¶56

14. Bare reading of the aforesaid provision of law, suggests that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit, in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. While considering the application, if any, filed under Section 10 of CPC, Court is also required to see that Court, in which the previously instituted suit is pending, is competent to grant the relief

¶57

¶58

claimed. The expression “no court shall proceed with the trial of any suit” makes the provision mandatory and the Court in which the subsequent suit is filed is prohibited from proceeding with the trial of that suit, if the condition laid down in Section 10 of the Code is satisfied.

¶59

15. The basic purpose and underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief and probably this is to pin down the plaintiff to one litigation, so as to avoid the contradictory verdicts by two courts in respect of the same relief and definitely aimed to protect the defendant from multiplicity of proceeding. The Hon’ ble Apex Court in case titled Aspijal and another vs. Khushroo Rustom Dadyburjor, (2013) 4 Supreme Court Cases 333, has held as under:-

¶60

“9 Section 10 of the Code which is relevant for the purpose reads as follows:

¶61

¶62

“ 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.

¶63

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.”

¶64

From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding.”

¶65

16. If Civil Court trying subsequently instituted suit

¶66

is made aware of the fact that previously instituted suit

¶67

¶68

inter se same parties, is also with regard to same issue, it should not proceed with the subsequently instituted suit till the time previously instituted suit is finally decided. In the case at hand, as per the case set up by the defendant plaintiff filed two suits against the same party, seeking therein declaration to the extent that he is owner of the suit land on the basis of the Will executed in his favour by late Smt. Reshmu Devi, who was allegedly the owner of land falling in the territorial jurisdiction of two courts i.e. one in the Civil Court, Shimla and second at Rohru and as such, previously instituted suit filed by the plaintiff is required to be stayed till the time previously instituted suit is not decided. Section 10 of CPC has been provided with a view to avoid conflicting judgments by two Civil Courts having concurrent jurisdiction, meaning thereby application, if any, for stay under Section 10 of CPC is required to be filed during the pendency of suit, but definitely not after disposal of the same.

¶69

¶70

17 . In the case at hand, an application under Section 10 of CPC came to be filed on behalf of the defendant, when subsequent suit filed on behalf of the defendant stood decided and as such, Court below rightly held the application filed by the defendant at appellate stage not to be maintainable. Otherwise also, very purpose and object of Section 10 of CPC is to avoid two courts from recording of conflicting judgments qua the same issue. Since judgment in subsequently instituted suit stood already rendered by the time application under section 10 of CPC came to be filed on behalf of the defendant, Court rightly rejected the same.

¶71

18 . The fundamental test to attract Section 10 of CPC is whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit or not, but in the case at hand, where judgment in subsequent suit stands already delivered, aforesaid test to attract section 10 of CPC, is also not applicable. Rather judgment rendered in subsequent suit would now operate as res-judicata in the previously

¶72

¶73

instituted suit, which is still pending adjudication,if the plaintiff succeeds to demonstrate that controversy in both the suits is/was the same.

¶74

19 . Having carefully gone through the judgments relied upon by the learned Senior counsel representing the petitioner in support of his argument that since appeal is continuation of suit, application under Section 10 of CPC is maintainable at the stage of appeal, this Court though is in agreement with Mr. G.D.Verma, learned Senior Counsel that appeal is continuation of suit, but as has been held by Hon’ble Apex Court in Aspijal case (supra) language of Section 10 CPC is referable to a suit instituted in the Civil Court and it cannot be applied to the proceedings of other nature instituted under any other statute. Moreover, Civil Court trying suit and the Appellate Court examining the correctness of the judgment and decree rendered by trial Court while exercising appellate jurisdiction cannot be said to using/exercising concurrent jurisdiction. Reliance is also placed upon the judgment rendered by Hon’ble Apex Court

¶75

¶76

in National Institute of Mental Health & Neuro Sciences vs C. Parameshwara , AIR 2005 Supreme Court

¶77

242, wherein it has been held as under:-

¶78

“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 contra-distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in

¶79

¶80

both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical.

¶81

In the present case, the appellant had initiated the disciplinary proceedings against the respondent herein on charges of misappropriation of drugs. In the said disciplinary proceedings, the respondent was found guilty of alleged misappropriation of drugs. On the basis of the findings arrived at in the disciplinary enquiry, the respondent herein was removed. The extent of the loss suffered by the appellant, as found in the disciplinary enquiry, was Rs. 1,79,668.46. Being aggrieved by the order of dismissal, the respondent moved the Labour Court. On 29.10.2001, the Labour Court passed an award setting aside the order of removal dated 12.4.1993. Being aggrieved, the appellant instituted writ petition No. 24348/02. The appellant has also instituted civil suit No. 1732/95 for recovery of the loss suffered by it to the tune of Rs. 1,79,668.46 with interest. Thus, as can be seen from the above facts, both the proceedings operated in different spheres. The subject matter of the two proceedings is entirely distinct and different. The cause of action of the two proceedings is distinct and different. The cause of action in filing the said suit is the loss suffered by the appellant on account of the shortage of drugs. On the other hand, in the said writ petition No. 24348/02, the management has challenged the award of the Labour Court granting reinstatement of the respondent.

¶82

As stated above, Section 10 CPC is referable to a suit instituted in a civil Court, The proceedings before the

¶83

¶84

Labour Court cannot be equated with the proceedings before the Civil Court. They are not the Courts of concurrent jurisdiction. In the circumstances, Section 10 CPC has no application to the facts of this case.

¶85

In the impugned judgment, the High Court has observed that since the writ petition No. 24348/02 filed by the appellant against the award of the Labour Court was pending in the High Court and since the High Court was superior to the Civil Court it was desirable to stay the passing of the decree by the Civil Court. At this stage, it may be mentioned that the respondent applied for stay of the trial pending in the City Civil-Court, Bangalore under Section 10 read with Section 151 CPC. Since the scope of the writ petition filed by the management was entirely distinct and separate from the suit instituted by the management in the Civil Court, we are of the view, that, the High Court had erred in directing the trial Court not to proceed with the drawing up of the decree.”

¶86

20. Very object of Section 10 of CPC is to prevent two courts having concurrent jurisdiction from passing conflicting judgments, save precious time of the Court, witnesses and the parties. Section 10 of CPC provides that parties to the subsequent instituted suit should await the judgment of the previously instituted suit so that the trial in subsequent suit, if necessary is curtailed. As per provision

¶87

¶88

contained under Section 10 of CPC “trial” of the subsequent suit can be ordered to be stayed, if previously instituted suit qua the same party on the same issue is pending adjudication. However, interestingly, in the case at hand, application under Section 10 of CPC, praying therein to stay the previously instituted suit came to be filed after final disposal of the subsequently instituted suit. Interestingly, in the case at hand, defendant never chose to raise specific objection in the written statement filed in the subsequently instituted suit that previously instituted suit having been filed by the plaintiff against him on the same and similar issue is pending adjudication and as such, suit having been filed may be dismissed, rather he chose to contest the suit on its own merit . Moreover, Section 10 of CPC talks about the stay of trial of the suit, it obviously means that the subsequently instituted suit can be stayed only at the trial stage. Appellate proceedings though considered to be continuation of suit, but definitely by no stretch of imagination appellate proceedings can be termed or equated

¶89

¶90

with the proceedings at the ‘trial stage” of the suit. As has

¶91

been observed hereinabove that mandate of Section 10 of CPC is very clear that only “trial of the suit can be stayed, hence this Court finds no reason to interfere with the impugned order passed by the learned Court below.

¶92

21 . In case titled Ranju Ram & another Vs. Nand Lal and Others , AIR 2011 Himachal Pradesh 35, this Court had an occasion to deal with similar situation, wherein first suit was instituted by petitioners and subsequently suit instituted was of respondent. Subsequently instituted suit filed by the respondent was decided earlier and had reached the stage of second appeal, whereas the previously instituted suit was still pending at the first appellate stage. This Court having taken note of provision of Section 10 of CPC, clearly ruled out that it does not mean that the previously instituted suit becomes the subsequently instituted suit because basic purpose of this section is that to stay the subsequently instituted suit in case dispute/plea raised in the previously instituted suit is

¶93

¶94

also the same. It would be profitable to reproduce para Nos.

¶95

6 to 10 of the aforesaid judgment herein:-

¶96

“6.In my view the learned lower Appellate Court gravely erred in allowing these applications. Section 10 of the Code of Civil Procedure reads as follows:-

¶97

“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).”

¶98

A bare perusal of the Section clearly shows that no Court shall proceed with “trial of the suit” in which the matter in issue is also directly and substantially in issue in a previously instituted suit. Therefore, it is more than apparent that what can be stayed is the trial of the suit and that too trial of the subsequently instituted suit. Here the first suit was instituted by the petitioners and the subsequently instituted suit was of the respondents. It is true that the subsequently instituted suit was decided earlier and has reached the stage of second appeal whereas the previously instituted suit is still at the first appellate stage but this does not mean that the previously instituted suit becomes the subsequently instituted suit. The basic purpose of this section is that the subsequently instituted suit has to be stayed.

¶99

If we go behind the purpose of Section 10, it is obvious that the framers of Section 10 felt that if a matter has already been decided by a Court, the precious time of the Court, the witnesses and the parties should not be wasted in a second trial and the parties should await the judgment of the previously instituted suit so that the trial in the subsequent suit if necessary can be curtailed. Here we are

¶100

¶101

dealing with a case where both the suits proceeded. It is the present respondents who instituted the second suit. When they instituted the second suit and no objection was raised under Section 10of the CPC can they now take advantage of this quirk of fate that their suit has been decided earlier and now they pray that the previously instituted suit be stayed? In my view the answer has to be in the negative.

¶102

When the Section talks of stay of trial of the suit it obviously means that the subsequently instituted suit can be stayed only at the trial stage. It is true that normally appellate proceedings are considered to be a continuation of the suit but by no stretch of imagination can it be said that the appellate proceedings are at the “trail stage” of the suit. The mandate of the Section is very clear that only the trial of the suit can be stayed. In very exceptional circumstances stay may also be granted at the appellate stage but normally it is only the trial of the suit which could be stayed and not the appeal.

¶103

Reliance placed by Shri Romesh Verma, learned counsel for the respondent, on the judgment of this Court in Durga Dass vs. Smt. Gitan Devi and others, AIR 1977 Himachal Pradesh 65, is totally misplaced. In that case the previously instituted suit had been decided and the Letters Patent Appeal arising out of the same was pending. Then the second suit was filed and in the second suit an application was filed by the defendant for stay of the suit. It was in that context that this Court observed that appeal is a continuation of the suit and therefore, the trial of the second suit was stayed. The other judgment relied upon by Shri Romesh Verma is Life Pharmaceuticals (Pvt.) Ltd. vs. Bengal Medical Hall, AIR 1971 Calcutta 345, is not at all applicable because therein the subsequently instituted suit was stayed. Both the suits were at the trial stage. Therefore, this citation has also no application to the facts of the case.”

¶104

22 . Mr. G.D.Verma, learned Senior Counsel while

¶105

placing reliance upon the judgment in case titled Durga

¶106

Dass Vs. Smt. Gitan Devi and others , AIR 1977

¶107

¶108

Himachal Pradesh, contended that controversy raised in the subsequently instituted suit remains pending in the appeal, and an appeal is a continuation of the suit and as such application under Section 10 of CPC filed at the appellate stage is maintainable. Having carefully perused the aforesaid judgment rendered by this Court in Durga Dass case (supra), this Court is not in agreement with Mr. G.D.Verma, learned senior counsel for the reason that it has been nowhere laid down in the judgment relied upon that application under section 10 of CPC for stay of subsequent suit can be filed after conclusion of the trial in the subsequent suit that too at appellate stage. In the aforesaid judgment, Co-ordinate Bench of this Court though observed that it is difficult to accept the view taken by learned Senior Subordinate Judge that since previously instituted suit had been disposed of by the trial Court, it could not be described as pending suit and the mere circumstance that a Letters Patent Appeal had arisen out of that suit and was pending was of no significance, but it never returned finding that

¶109

¶110

application under Section 10 of CPC for stay of previously instituted suit can be filed even after the disposal of the subsequently instituted suit. Rather Co-ordinate Bench of this Court while placing reliance upon the judgment rendered by Privy Council in S.P.A. Annamalay Chetty Vs. B.A.Thornhill, AIR 1931 PC 263, observed that controversy raised in the suit remains pending in appeal or ,as is sometimes said, an appeal is a continuation of the suit, but as has been taken note hereinabove, Hon’ble Apex Court in Aspijal case (supra) has specifically held that language of Section 10 of CPC is referable to the suit instituted in the Civil Court and not to any other proceedings of any other nature. Moreover, careful perusal of aforesaid judgment passed in Durga Dass case (supra) , suggest that previously instituted suit was disposed of by the trial Court and an application under Section 10 of CPC was made by the defendants in the subsequently instituted suit alleging that the matter in issue in the suit was also directly and substantially in issue in a previously instituted

¶111

¶112

suit, therefore, subsequent suit can be stayed as it stood

¶113

decided prior to decision of subsequently suit and Letter Patent Appeal against the judgment rendered in the previously instituted suit was pending. But in the case at hand, proposition is totally converse because application under Section 10 of CPC came to be filed on behalf of the defendant for stay of the subsequently instituted suit, but after conclusion of trial in subsequently instituted suit and as such, there was no occasion for the Court below to stay the trial, if any, of subsequent instituted suit. Moreover, Section 10 of CPC talks about the stay of the subsequently instituted suit not the appeal arising out of the judgment passed in subsequently instituted suit.

¶114

23 . Leaving everything aside, aforesaid judgment rendered in Durga Dass case (supra) has been otherwise held to be not applicable by Co-ordinate Bench of this Court in

¶115

Ranju Ram & another Vs. Nand Lal and Others, AIR

¶116

2011 Himachal Pradesh 35.

¶117

¶118

24. The word “trial” is not defined in the Code and as

¶119

such, word “trial” mentioned in Section 10 of the CPC is required to be construed in the light of the scheme of Code itself. The Hon’ble Apex Court in Harish Chandra Bajpai

¶120

and another vs. Triloki Singh and another, AIR 1957 SC 444, has held that the word “trial” may be understood in its limited extent, as meaning the final hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. Hon’ble Apex Court has further held that word “trial” may also connotes the entire proceedings before the trial Court from time to time until the pronouncement of the award.

¶121

25. Hon’ble Apex Court in Indian Bank vs. Maharashtra State Cooperative Marketing Federation

¶122

Ltd., (1998)5 SCC 69, has held that word “trial” is of wide import. In its widest sense it would include all the proceedings right from the stage of institution of a plaint in a civil case to the stage of final determination by a judgment

¶123

and decree of the court. Hon’ble Court has further observed

¶124

¶125

that whether the widest meaning should be given to the word “trial” or that it should be construed narrowly must necessarily depend upon the nature and object of the provision and the context in which it is used. Therefore, the word “trial” in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to “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”. The object of the prohibition contained in Section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The course of action which the Court has to follow in terms of Section 10 CPC is not to proceed with the “trial” in the suit, but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In this regard the Hon’ble Apex Court has held as under:-

¶126

“7. Section 10 of the Code prohibits the court from proceeding with the trial of any suit in which the

¶127

¶128

matter in issue is also directly and substantially in issue in a previously instituted suit provided other conditions mentioned in the section are also satisfied. The word 'trial' is no doubt of a very wide import as pointed out by the High Court. In legal parlance it means a judicial examination and determination of the issue in civil or criminal court by a competent Tribunal. According to Webster Comprehensive Dictionary, International Edition, it means the examination, before a tribunal having assigned jurisdiction, of the facts or law involved in an issue in order to determine that issue. According to Stroud's Judicial Dictionary (5th Edition), a 'trial' is the conclusion, by a competent tribunal, of question in issue in legal proceedings, whether civil or criminal. Thus in its widest sense it would include all the proceedings right from the stage of institution of a plaint in a civil case to the stage of final determination by a judgment and decree of the Court. Whether the widest meaning should be given to the word 'trial' or that it should be construed narrowly must necessarily depend upon the nature and object of the provision and the context in which it is used.

¶129

8. Therefore, the word "trial" in section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to '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'. The object of the prohibition contained in section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the later suit with earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders

¶130

¶131

it has to be stated that the word 'trial' in Section 10 is not used in its widest sense.

¶132

9. The provision contained in section 10 is a general provision applicable to all categories of cases. The provisions contained in Order 37 apply to certain classes of suits. One provides a bar against proceedings with the trial of a suit, the other provides for granting of quick relief. Both these provisions have to be interpreted harmoniously so that the objects of both are not frustrated. This being the correct approach and as the question that has arisen for consideration in this appeal is whether the bar to proceed with the trial of subsequently instituted suit contained in section 10 of the Code is applicable to a summary suit filed under Order 37 of the Code, the words 'trial of any suit' will have to be construed in the context of the provisions of Order 37 of the Code. Rule 2 of order 37 enables the plaintiff to institute a summary suit in certain cases. On such a suit being filed the defendant is required to be served with a copy of the plaint and summons in the prescribed form. Within 10 days of service the defendant has to enter an appearance. Within the prescribed time the defendant has to apply for leave to defend the suit and leave to defend may be granted to him unconditionally or upon such terms as may appear to the Court or Judge to be just. if the defendant has not applied for leave to defend, or if such an application has been made and refused, the plaintiff becomes entitled to judgment forthwith. If the conditions on which leave was granted are not complied with by the defendant then also the plaintiff becomes entitled to judgment forthwith. Rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall be the same as the procedure in suits instituted in the ordinary manner. Thus in classes of suits where adopting summary procedure for deciding them is permissible the defendant has to file an appearance within 10 days of the service of summons and apply for leave to defend the suit. If the defendant does not enter his appearance as required or fails to obtain leave the allegations in the plaint are deemed to be admitted and straightaway a decree can be passed in favour of the plaintiff. The stage of determination of the matter in issue will arise in a summary suit only after the defendant obtains leave. The trial would really begin only after leave is granted to the defendant. This clearly appears to be the scheme of summary procedure as provided by Order 37 of the Code.

¶133

¶134

10. Considering the objects of both the provisions, i.e., Section 10 and Order 37 wider interpretation of the word 'trial' is not called for. We are of the opinion that the word 'trial' in section 10, in the context of a summary suit, cannot be interpreted to mean the entire proceedings starting with institution of the suit by lodging a plaint. In a summary suit the 'trial' really begins after the Court or the Judge grants leave to the defendant to contest the suit. Therefore, the Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the summons for judgment and passing the judgment in favour of the plaintiff if (a) the defendant has not applied for leave to defend or if such application has been made and refused or if(b) the defendant who is permitted to defend fails to comply with the conditions on which leave to defend is granted”.

¶135

26. Having carefully perused the aforesaid exposition

¶136

of law laid down by Hon’ble Apex Court, this Court is not in agreement with the submission made by Shri G.D. Verma, learned Senior Counsel representing the defendant, that word “trial” would include proceedings of appeal also because hearing of appeal by appellate Court, by no stretch of imagination, can be considered or equated with the proceedings of the trial of the suit for the purpose of Section 10 of CPC. Hon’ble Apex Court in Harish Chandra’s case supra has categorically held that after the documents are filed, witnesses are examined, arguments are heard and

¶137

¶138

judgment pronounced by the trial Court, then it must be held that “trial of suit has come to an end”.

¶139

27. Mr. G.D.Verma, learned Senior counsel

¶140

representing the defendants while placing reliance upon the following judgments rendered in cases titled National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara, AIR 2005 Supreme Court 242, Aspi Jal and another Vs. Khushroo Rustom Dadyburjor, AIR 2013 Supreme Court 1712, Bihar Solvent Extraction Co. and others Vs. Bihar State Forest Development Corporation Ltd., AIR 1998 Patna 111, Indian Bank vs. Maharashtra State Cooperative Marketing Federation

¶141

Ltd., 1998(5) Supreme Court Cases 69, Manohar Lal

¶142

Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 Supreme Court 527, Life Pharmaceuticals (private) Ltd.vs. Bengal Medical Hall, AIR 1971 Calcutta 345, Smt. Naurati and others Vs. Mehma Singh, AIR 1972 Punjab & Haryana 421, Gujarat State

¶143

¶144

Road Transport Corporation, Bhavnagar vs.

¶145

Vimlaben L. Shah, AIR 1995 Gujarat 220, strenuously

¶146

argued that provisions of Section 10 CPC are mandatory and Court trying subsequently instituted suit is bound to stay the same in case it comes to its knowledge that previously instituted suit inter se same parties on the same issue is still pending adjudication either in the trial Court, in the first or second appeal arising there from. There is no quarrel with the aforesaid arguments advanced by Mr. G.D.Verma, learned Senior counsel because admittedly Section 10 CPC is imperative and Courts are bound to stay the proceedings in subsequently instituted suit if it comes to its knowledge that previously instituted suit inter se same parties on the same issue is still pending, but definitely in this regard party concerned is required to make a request to the Court trying previously instituted suit that previously instituted suit is pending adjudication. But, if the trial of the subsequently instituted suit has proceeded without any objection and same has come to an end with the

¶147

¶148

delivery of judgment and the preparation of decree, Section 10 has no relevance because it only prohibits the trial of the suit. In view of the aforesaid there appears to be no reason for this Court to take note of aforesaid judgments relied upon by the learned counsel representing the defendants.

¶149

28. Plain reading of Section 10 CPC nowhere suggests that appellate Court is estopped from proceeding with the hearing of the appeal, arising out of the subsequently instituted suit, on the ground that previously instituted suit is still pending. Reference is made to judgment rendered by High Court of Rajasthan in Munilal vs. Sarvajeet, AIR 1984 Rajasthan, 22, wherein the Court has held as under:-

¶150

“15. I may make it clear that I am not expressing any opinion in the present case as to whether the word 'trial' occurring in Section 10 should be construed in the narrower or the wider sense, as referred to by their Lordships of the Supreme Court in Harish Chandra's case, as it is not necessary for me to decide that question for the purposes of this case. It would suffice to say that even if the word 'trial' is construed in the wider sense applied by their Lordships of the Supreme Court in Harish Chandra's case, in respect of the trial of Election petitions and the same is made

¶151

¶152

applicable to the interpretation of the expression 'trial of the suit' occurring in Section 10, C.P.C. yet the trial would necessarily end at the conclusion of the suit; and the termination of the proceedings in the trial court would be the culminating point where, the trial of the suit would naturally come to an end. In my view, the hearing of the appeal by the appellate Court cannot be considered as a part of the 'trial of the suit' for Purposes of Section 10. C.P.C. The expression 'trial' has been defined in Stroud's Judicial Dictionary. '(IV Edition) Vol. 5 at page 2827 as "A trial is the conclusion. by a competent Tribunal, of questions in issue in legal proceedings, whether civil or 'criminal". In Black's Law Dictionary. (IV Edition) 'trial' has been defined at page 1675 as "A judicial examination, in 'accordance with law of the land, of 'a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has jurisdiction over it." It has further been stated that "it includes all proceedings from time when issue is joined or more usually, when parties are called to try their case in court to time of its final determination." A detailed description of trial has been given by Earl Jowitt in his dictionary of English Law (IInd Edn.) Vol. 2 at page 1805, as under:--

¶153

"The pleadings are opened by counsel for the plaintiff and the case stated to the jury; after this the witnesses for the plaintiff are examined by his counsel, the cross-examination being generally conducted by the senior counsel for the defendant, if the defendant's counsel objects to any question or any document, all the defendant's counsel are entitled to be heard on the objection, and all the plaintiff's counsel on the other side, and the senior counsel for the defendant in reply and so if the plaintiff's counsel

¶154

¶155

objects mutatis mutandis. If the plaintiff has evidence to rebut the issues of which the burden of proof lies on the defendant, he may either produce it at the same time as his other evidence, or reserve it until after the defendant has given affirmative evidence on the issue. At the end of the plaintiff's evidence, the defendant's counsel declares whether he will call witnesses: and if he does not the plaintiff's senior counsel sums up his evidence, and the defendant's senior counsel next addressed the Jury, and the Judge sums up. If the defendant's counsel calls evidence he immediately opens his case to the jury, and the witnesses are called and examined as in the plaintiff's case. The plaintiff is, in general, entitled to call witnesses to rebut the evidence of the defendant, if he has not already given all his evidence, which is more generally the case. Then the defendant's senior counsel sums up and the senior counsel for the plaintiff relies upon the whole case. The Judge then sums up. The verdict may be taken by the associate in the absence of the Judge."

¶156

The expression 'trial or hearing of the action' occurring in the Legal Aid and Advice Act. 1949 came up for consideration in Gope v. United Dairies (London) Ltd. (1963) 2 All ER 194 and it was held that on a true construction of the aforesaid enactment, a dismissal of an action at the preliminary stage did not fall within the expression 'trial or hearing of the action' so as to entitle the defendant to costs. In my view, even if a wider interpretation is given to the expression 'the trial of the suit' occurring in Section 10, C.P.C. yet it cannot travel beyond the determination of the cause of action by the trial court. If the documents have been filed, witnesses' have been examined, arguments have been heard and judgment pronounced by the trial court, then it must be held that 'the trial of the suit' has come to an end. This is in consonance with the wider view, applied by their Lordships of the Supreme Court to the

¶157

¶158

expression, 'trial' in the case of election petition, in Harish Chandra's case. The hearing of an appeal cannot be considered as a part of 'the trial of the suit'.

¶159

16. Thus, while holding that the provisions of Section 10, C.P.C. are mandatory and the trial of a subsequently instituted suit is bound to be stayed if any party makes a request before the Court trying that suit that a previously instituted suit is pending determination either in the trial court, or the first appeal or second anneal arising therefrom is pending for decision. But if the trial o'f the subsequently instituted suit has proceeded without any objection and the same has terminated with the deliver of the judgment and the preparation of the decree of that court then Section 10, C.P.C. has no relevance because it only prohibits the 'trial of the suit' and no further. Following the dictum of Vivian BOSE J. in Gangaprasad's case (AIR 1937 Naff 132) as no objection under Section 10. C.P.C., to the trial of the subsequently instituted suit was taken until the termination of the proceedings in the suit the objection must be deemed to have been waived by the petitioner and it is not open to him to raise such an objection in the appeal arising out of the subsequently instituted suit.

¶160

17. Learned counsel for the petitioner may be right in submitting that as the provisions of Section 10, C.P.C. are mandatory, the court was not competent to impose any condition while staying the proceedings in the suit, but I refrain from expressing any opinion on this question. In my view, the trial of the subsequently instituted suit is over and the objection under Section 10. C.P.C. having been waived at the trial stage, the same could not be entertained by the first appellate court.

¶161

18. As a result of the foregoing discussion the order passed by the learned District Judge. Sri Ganganagar dated July 15, 1981 is set aside and it is held that the provisions of Section 10. C.P.C. are not attracted to the decision of the appeal

¶162

¶163

arising out of a subsequently instituted suit. The application under Section 10. C.P.C. filed by the petitioner is dismissed. Learned District Judge. Sri Ganganagar is directed to proceed with the hearing of the appeal and to dispose of the same at an early date.”

¶164

29. Similarly, this Court finds no reason to disagree

¶165

with the submission made by Shri G.D. Verma that appeal is continuation of suit, but definitely following judgments in

¶166

cases titled Inder Chand Jain (dead) through LRs vs. Moti Lal(dead) through LRs., (2009) 14 Supreme Court

¶167

Cases 663, Rachakonda Narayana vs. Ponthala Parvathamma and another, (2001) 8 Supreme Court Cases 173, Dilip vs. Mohd. Azizul Haq and another

¶168

(2000)3 Supreme Court Cases 607, Durga Dass Vs. Smt. Gitan Devi and others, AIR 1977 Himachal Pradesh 65,

¶169

Sagar Shamsher Jung Bahadur Rana and another Vs. The Union of India and others, AIR 1979 Delhi 118,

¶170

Mahangu Prasad Sah and another Vs. Pravag Sah

¶171

and others, AIR 1975 Gauhati 40, Ghantesher Ghosh vs.

¶172

Madan Mohan Ghosh and others , (1996) 11 Supreme Court Cases 446, Dayawati and another Vs. Inderjit

¶173

¶174

and others, AIR 1966 Supreme Court 1423, relied upon by

¶175

Shri Verma in support of his aforesaid contention may not be of any help in the present case because as has been held in earlier part of the judgment that though appeal is continuation of suit but language of Section 10 CPC is referable to the suit in the trial Court and not to other proceedings, (see: Aspijal and another vs. Khushroo

¶176

Rustom Dadyburgor, (2013)4 SCC 333, National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara, AIR 2005 SC 242) and as such no fruitful purpose would be served in taking note of aforesaid judgments, wherein admittedly it has been held that the appeal is continuation of the suit.

¶177

30. Consequently in view of detailed discussion made hereinabove, this Court finds no illegality and infirmity in the impugned order passed by learned District Judge(Forest), Shimla and as such same is upheld and the present petition is dismissed being devoid of any merit.

¶178

¶179

31. Interim order, if any, is vacated. All the

¶180

miscellaneous applications are disposed of.

¶181

32. Learned counsel representing the parties to

¶182

appear before the Court below on 18.11.2019 Record, if any,

¶183

of Court below be sent back forthwith.

¶184