Dismissed

Batakrushna Sahoo v. Laxmidhar Sahoo

Orissa HC17 Dec 2018CMP/1465/2018

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the Orissa High Court dismissed a challenge to the trial court's rejection of a Section 10 CPC stay application. The court held that since the matter had attained finality and the plaintiff could raise contentions in final decree proceedings, a fresh suit for identical relief was not maintainable.

What did the court decide?

The petition challenging the trial court's order rejecting the stay application under Section 10 CPC is dismissed.

Batakrushna Sahoo Vs Laxmidhar Sahoo — Property and Title | Orissa HC (2018)

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HIGH COURT OF ORISSA : CUTTACK

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C.M.P. No.1465 of 2018

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In the matter of an application under Article 227 of the Constitution of India.

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----------Batakrushna Sahoo …. Petitioner Versus Laxmidhar Sahoo and another …. Opposite Parties For Petitioner … Mr. Sidhartha Mishra-1, Advocate

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing and judgment : 17.12.2018

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Dr. A.K.Rath, J This petition challenges the order dated 25.08.2018

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passed by the learned Civil Judge (Senior Division), Bhubaneswar in Title Suit No.152 of 1994 (FD). By the said order, learned trial Court rejected the application of the plaintiff under Sec. 10 CPC to stay the further proceeding of the suit till disposal of Civil Suit No.2257 of 2016.

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2. This case has a chequered history. Plaintiff-petitioner instituted Title Suit No.152 of 1994 (FD) before the learned Civil Judge (Senior Division), Bhubaneswar for a declaration that he is the sole owner of the suit property, registered sale deed No.5437 dated 28.12.1993 as void and not binding on him and for permanent injunction impleading his father Kumar Sahu and the opposite parties

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as defendants. The suit was decreed. Assailing the judgment and decree, defendant nos.2 and 3 filed RFA No.44 of 2007 before the learned District Judge, Khurda, which was eventually dismissed. They filed RSA No.105 of 2013 before this Court. The appeal was allowed. Plaintiff filed SLP(C) No.5582 of 2015 before the apex Court. The SLP was dismissed on 27.02.2015. The apex Court observed that “However, the question of law is left open”. While the matter stood thus, the plaintiff filed C.S. No.2257 of 2016 for declaration that RSD No.5437 dated 28.12.1993 executed by his father in faovur of the defendantsopposite parties as void, confirmation of possession, mandatory and permanent injunction. Thereafter, the plaintiff filed an application under Sec. 10 CPC to stay the further proceeding of final decree proceeding in T.S. No.152 of 1994 till disposal of the suit. Learned trial court rejected the same.

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3. Heard Mr. Sidhartha Mishra-1, learned counsel for the petitioner.

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4. Mr. Mishra-1, learned counsel for the petitioner submits that the apex Court granted leave to the plaintiff observing that the question of law is left open. In view of the same, the second suit has been filed. In the event the final decree proceeding will continue, then the latter suit is liable to be dismissed. Therefore, learned trial Judge is not justified in rejecting the application filed under Sec. 10 CPC.

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5. Sec.10 CPC, which is the hub of the issue, reads thus:

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“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.”

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6. In Binapani Jethi @ Barik vs Bijay Kumar Jethi and others (CMP No.987 of 2014 disposed of on 5^th December, 2018), this Court held:

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“9. On a bare reading of Section 10 CPC, it is evident that the following conditions must be fulfilled to attract the provisions of Section 10 CPC.

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The suit must be between the parties.

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The matter in issue in the later suit must be directly and substantially the same as in the previous suit.

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On the date of application, both the suits must be pending.

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The parties must be litigating under the same title.

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xxx xxx xxx xxx

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In National Institute of Mental Health & Neuro Sciences v. C. Parameshwara , AIR 2005 SC 242, the Apex Court in paragraph-8 of the report held :

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“8. The object underlying section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same

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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 contradistinction to the words “incidentally or collaterally in issue”. Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical.”

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The basic purpose of this section is to protect a person from multiplicity of proceedings as also to avoid conflict decisions. Section 10 CPC is an independent provision. The same is untrammelled by any provision of CPC. Provisions of Section 10 and Order 22 Rules 3 & 4 CPC operate in different field. They embrace the fields which are covered by the conditions embodied therein. The provisions of Order 22 CPC do not in any way circumscribe or limit the operation of Section 10 CPC. If the conditions enumerated in Section 10 CPC are satisfied, then the Court shall stay the further proceeding of the suit. Whether the suit will fail or abate, it is not the determining factor for deciding the application u/s 10 CPC. While deciding the application u/s 10 CPC, the Court cannot impose any condition.”

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7. On the anvil of the decision cited supra, the instant case

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may be examined. The matter has attained finality. The observation of

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the apex Court that “The question of law is left open” does not come to the rescue of the plaintiff. The plaintiff may raise all contentions in the final decree proceeding. He cannot institute a fresh suit seeking the identical relief of the previous suit.

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8. The impugned order does not suffer from any illegality or infirmity warranting interference of this Court under Article 227 of the Constitution. The petition is dismissed.

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Orissa High Court, Cuttack. Dated the 17.12.2018/Uks

Batakrushna Sahoo v. Laxmidhar Sahoo

Case brief

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Batakrushna Sahoo v. Laxmidhar Sahoo

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