Dismissed

Jainul Abedin and Anr. v. Meraj Ahmed And Ors.

Jharkhand HC11 Sept 2015WPC/3824/2014

Case brief

AI extract

What is this about?

High Court of Jharkhand dismissed a writ petition filed under Section 10 CPC challenging a trial court order rejecting a stay application. The court held that Section 10 CPC is not attracted as the two suits were instituted on different causes of action and involved different parties.

What did the court decide?

Writ petition dismissed; impugned order dated 21.05.2014 affirmed.

Jainul Abedin and Anr. Vs Meraj Ahmed And Ors. — Partition | Jharkhand HC (2015)

¶1

¶2

IN THE HIGH COURT OF JHARKHAND AT RANCHI W. P. (C) No. 3824 of 2014

¶3

JAINUL ABEDIN SON OF LATE ABDUL HAMID 2. MD. SHAMSHER SON OF LATE FAKIR MOHD.

¶4

BOTH R/O HOLDING NO.39, LINE NO.4, ABLOCK DHATKIDIH PO AND PS BISTUPUR, DISTT. EAST SINGHBHUM …... PETITIONERS

¶5

VERSUS

¶6

MERAJ AHMED SON OF LATE HAZI MOHD. NAZIR AHMAD R/O HOLDING NO. 11, LINE NO. 3 BBLOCK, DHATKIDIH PO AND PS BISTUPUR, DISTT EAST SINGHBHUM

¶7

MRS. HALIMA KHATOON WIFE OF IFTEYKAR AHMED R/O HOLDING NO. 68, LINE NO. 7 ABLOCK, DHATKIDIH PO AND PS BISTUPUR DIST EAST SINGHBHUM

¶8

ANWARI BEGUM WIFE OF SAYEED YUNUS R/O ROAD NO. 9, AZAD BASTI, MANGO PO AND PS MANGO DIST EAST SINGHBHUM

¶9

QUAMARUDDIN NISSA DAUGHTER OF FAKIR MOHAMMAD R/O ROAD NO. 9, AZAD NAGAR MANGO PO AND PS MANGO DIST EAST SINGHBHUM …. RESPONDENTS

¶10

¶11

CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

¶12

FOR THE PETITIONERS : MR. RAJIV RANJAN, SR. ADV MR. SHRESTHA GAUTAM, ADV. FOR RESPONDENTS : MR. KALYAN BANERJEE, ADV.

¶13

8/ Dated: 11^th September, 2015 Per SHREE CHANDRASHEKHAR, J.

¶14

Aggrieved by order dated 21.05.2014 in Title Suit

¶15

No.45 of 2012 whereby, application under Section 10 CPC has been rejected, the present writ petition has been filed.

¶16

2. The brief facts of the case are that, Title Suit No.31 of 1989 was instituted by the petitioner no.1 and deceased Rashidan Bibi against one Amina Khatoon and other four persons. In the suit, besides share in the suit property, a declaration that agreement

¶17

¶18

dated 02.02.1983 executed by the defendant nos.1 to 3 and the saledeed in favour of the defendant nos.4 and 5 executed by defendant nos.1 to 3 dated 07.01.1986 bearing saledeed nos.169 and 170 are void and illegal was sought. The suit was dismissed on 22.12.2011 and thereafter, Title Suit No.45 of 2012 was instituted by Miraj Ahmad and Halima Khatoon. In the subsequent suit, the petitioners are defendant nos.1 and 2. Title Suit No.45 of 2012 was instituted seeking a declaration of joint ownership over the suit premises by virtue of saledeed executed by Amina Bibi and her two daughters on 07.01.1986. A decree for recovery of possession of the suit premises was also sought. In the pending Title Suit No.45 of 2012, application dated 04.09.2013 was filed seeking stay of further proceeding in the title suit on the ground of pendency of Appeal No.32 of 2012, which was filed by the petitioners challenging judgment and order dated 22.12.2011 in Title Suit No.31 of 1989. The said application has been dismissed vide order dated 21.05.2014. Aggrieved, the petitioners have approached this Court.

¶19

3. Heard the learned counsel for the parties.

¶20

4. The learned senior counsel for the petitioners submits that the appeal is a continuation of the suit and in both the suits, one of the issues is challenged to saledeed dated 07.01.1986. If the validity of saledeed dated 07.01.1986 is decided in favour of the petitioners, it would conclusively bar relief claimed in Title Suit

¶21

¶22

No.45 of 2012. It is contended that the expression used in Section 10 CPC is directly and substantially and since in both the suits, the main issue is the same and similar, further proceeding in Title Suit No.45 of 2012 should have been stayed. It is contended that in the event both Title Suit No.45 of 2012 and Title Appeal No.32 of 2012 are decreed, orders passed in Title Suit No.45 of 2012 and Title Appeal No.32 of 2012 cannot be given effect to.

¶23

5. Per contra, Mr. Kalyan Banerjee, the learned counsel for the respondents submits that both the suits are based on different causes of action and issues in both the suits are different though, some of the issues may be same and therefore, Section 10 CPC has no application in the present case.

¶24

6. In Title Suit No.31 of 1989, the plaintiffs have admitted that the plaintiffs and defendant nos.1 to 3 are governed by Mohammedan law. The father of plaintiff no.1 and the husband of plaintiff no.2 as well as the husband of defendant no.1 and father of defendant nos.2 and 3 were own brothers, who were sons of Sk. Hussain. It was asserted by the plaintiffs that at the time when the suit property was acquired, father of the plaintiff no.1 has just resigned from the service and received settlement dues and out of that fund, he purchased the suit property. In the suit besides claiming 2/3^rd and 1/3^rd share each for the plaintiffs, a declaration for partition of the suit property in terms of agreement dated 02.02.1983 and in accordance with the law of inheritance

¶25

¶26

and succession between the plaintiffs and defendant nos.1 to 3 has also been sought. Another relief sought in the suit was for a declaration that saledeed nos.169 and 170 both dated 07.01.1986 executed by defendant nos.1 to 3 in favour of the defendant nos.4 and 5 are illegal and fake documents. Whereas, Title Suit No.45 of 2012 was instituted seeking a declaration of joint ownership over the suit property by virtue of saledeed dated 07.01.1986 and for a decree of recovery of possession. In Title Suit No.31 of 1989, following issues were framed:

¶27

i. “Is the suit as framed maintainable?

¶28

ii. Has the plaintiff valid cause of action or right to bring the suit?

¶29

iii. Whether the suit is barred under the provisions of Benami Transaction Prohibition Act, 1988?

¶30

iv. Whether Ram Chandra Sao in or about the year 1945 out of his own earnings purchased the schedule 'B' properties?

¶31

v. Whether the Schedule 'B' and 'C' properties are joint family properties of the parties?

¶32

vi. Whether the sale deeds executed by defendant no.1 in favour of defendant no.5 is valid and legal?

¶33

vii. Whether the schedule 'B' premises has been recorded in the name of defendant no.1 is correct?

¶34

viii. Whether the plaintiff is entitled to partition his 1/5^th share in the schedule 'B' and 'C' properties?

¶35

ix. To what relief or reliefs the plaintiff is

¶36

entitled?”

¶37

7. In Title Suit No.45 of 2012, the court has framed the

¶38

¶39

following issues:

¶40

i. “Whether the suit is maintainable in the present form for the reliefs claimed?

¶41

ii. Whether the plaintiffs have got any valid cause of action for bringing this suit?

¶42

iii. Whether this suit is barred by Law of Limitation, estoppel, waiver and acquiescence?

¶43

iv. Whether the suit is bad for nonjoinder and misjoinder of the necessary parties?

¶44

v. Whether the suit is barred by principal of resjudicata?

¶45

vi. Whether the plaintiffs are joint owner of the suit premises?

¶46

vii. Whether the plaintiffs are entitled for recovery of possession of the suit premises from defendants alongwith cost of the suit ?

¶47

viii. Whether the plaintiff is entitled to any other relief or reliefs under law of equity or under any other law?”

¶48

8. The object behind Section 10 CPC is to prevent two courts of concurrent jurisdiction to try simultaneously, two suits if in both the suits the matter is directly and substantially in issue and thus, to prevent two courts of concurrent jurisdiction from recording two conflicting findings on the same issue involved in both the suits. Section 10 C.P.C. reads as under;

¶49

“ 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

¶50

¶51

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.

¶52

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.”

¶53

9. The fundamental principle governing Section 10 CPC is whether the decision rendered in the previously instituted suit would bar the relief in the subsequently instituted suit. In “National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara” reported in (2005) 2 SCC 256 the Hon'ble Supreme court has held as under;

¶54

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.

¶55

…..........”

¶56

10. In the present case, as noticed above, though one of the issues involved in both the suits is same, both the suits were instituted on different causes of action. In both the suits even parties are not the same. In application under Section 10 CPC, the petitioners themselves have admitted the difference in parties inasmuch as, legal heirs of Abdul Hamid son of Sk. Hussain, who

¶57

¶58

were parties in Title Suit No.31 of 1989 have not been made party of Title Suit No.45 of 2012. The trial court has noticed that the previous suit was mainly for a suit for partition and for cancellation of two saledeeds whereas, the present suit is for eviction of the licensee. In “Aspi Jal and Another Vs. Khushroo Rustom Daddyburjor” reported in (2013) 4 SCC 333, on the same day two suits were instituted seeking ejection from the suit premises; one on the ground of bonafide requirement for selfoccupation and another on the ground of “nonuser for several years before institution of the suit”. During the pendency of two suits, another suit was filed for eviction on the ground of “nonuser for a continuous period of not less than six months immediately prior to the institution of the suit”. Application under Section 10 C.P.C. seeking stay of proceeding in the third suit till final disposal of the first two suits, was allowed by the trial court and the same was affirmed by the Bombay High Court. The Hon'ble Supreme Court observed as under:

¶59

12. “As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what “the matter in issue” exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subjectmatter of the two suits must be the same. This

¶60

¶61

provision will not apply where a few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of nonuser for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of nonuser but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of nonuser in the earlier two suits. But if they establish the ground of nonuser for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.”

¶62

11. Considering the above facts, I find no infirmity in the impugned order dated 21.05.2014 and accordingly, the writ petition is dismissed.

¶63

(Shree Chandrashekhar, J.)

¶64

R.K./A.F.R.

Jainul Abedin and Anr. v. Meraj Ahmed And Ors.

Case brief

What is this about?

What did the court decide?

Jainul Abedin and Anr. v. Meraj Ahmed And Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Seema Agarwal Vs State Of Jharkhand And Others

Santan Kumar Sinha Vs State of Jharkhand Thr Nitin Madan Kulkarni Pr Sec Deptt of Agruculture and Sugarcan Dev and Anr.

Saraswati Devi Vs the State of Jharkhand

Kauleshwar Oraon Alias Kamal Oraon Alias Kaleshwar Oraon Vs The State Of Jharkhand

Sunil Kumar Singh Vs Anita Devi

Employers in Relation to the Management of Ms Tisco Ltd. Now Tata Steel Ltd. Vs Their Workman Represented Through N G Arun Organizing Secretary Rashtriya Colliery Mazdoor Sangh