Allowed

Swami Shukdevanand Trust v. Sharad Chandra Mishra

Uttarakhand HC17 Dec 2020WPMS/987/2019

Case brief

AI extract

What is this about?

The High Court set aside the order of the Revisional Court which had stayed a subsequent suit based on Section 10 of C.P.C. The court held that since the subsequently impleaded party in the first suit was added after the second suit was filed, and parties/district were not common, the conditions for Section 10 were not met.

What did the court decide?

Impugned order of Revisional Court set aside; both suits to be heard together in the trial court.

Swami Shukdevanand Trust Vs Sharad Chandra Mishra — Property and Title | Uttarakhand HC (2020)

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WPMS No. 987 of 2019

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Hon’ble Manoj K. Tiwari, J.

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Mr. Nipun Singh and Dr. K.H. Gupata, Advocate for the petitioner.

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Mr. Vivek Shukla, Advocate for the respondents.

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Heard learned counsel for the parties through video conferencing.

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By means of this writ petition, under Article 227 of the Constitution of India, petitioners have challenged the judgment and order dated 31.01.2019 passed by 1^st Additional District Judge, Kotdwar, District Pauri Garhwal in Civil Revision No. 26 of 2018. By the said judgment, learned revisional court has allowed the application filed by Prem Shanker Mishra (respondent no. 2 in this petition) under Section 10 C.P.C. and set aside the order, passed by learned trial court.

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It transpires that respondent no. 2 had earlier filed Original Suit No. 7 of 2017 seeking permanent injunction against Brijesh Chaturvedi in respect of Plot Nos. 160 and 161 situate in Village Jonk, Paragna Gangasalad, Kotdwar, District Pauri Garhwal. When petitioner no. 1 came to know about the said suit, he filed an application for impleadment, which was allowed and he was made defendant in the said suit.

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Subsequently, petitioners filed Original Suit No. 49 of 2017 seeking permanent injunction against the respondents in respect of Plot Nos. 96, 110, 160 &161 situate in Village Jonk, District Pauri Garhwal. Respondent no. 2 filed an application under Section 10 of C.P.C., in Original Suit No. 49 of 2017, with the contention that since in the earlier suit, filed by him (Original Suit No. 7 of 2017), same

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subject matter is in issue and property in question is also the same, therefore, proceedings of subsequent suit i.e. Original Suit No. 49 of 2017 be stayed.

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Learned trial court rejected the said application by holding that in Original Suit No. 7 of 2017, plaintiff has neither sought relief against petitioner no. 1 ( Swami Shukdevanand Trust ); nor any cause of action has been shown to have been arisen against petitioner no. 1 ( Swami Shukdevanand Trust ); plaintiff No. 2 ( Ramgulam Kanhayalal Charitable Trust ) and defendant no. 1 - Mr. Sharad Chandra Mishra in Original Suit No. 49 of 2017 are not party in Original Suit No. 7 of 2017. It was, therefore, held that since cause of action, parties and property in dispute in both the suits, are different, therefore, ingredients of Section 10 of C.P.C. are missing, consequently, application under Section 10 C.P.C. was rejected.

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Feeling aggrieved by rejection of his application under Section 10 of C.P.C., respondent no. 2 filed Miscellaneous Civil Revision No. 26 of 2018. Learned Additional District Judge, Kotdwar, District Pauri Garhwal has allowed the application of respondent no. 2 filed under Section 10 C.P.C. and set aside the order passed by learned trial court and held that further proceedings of Original Suit No. 49 of 2017 shall remain stayed under Section 10 of C.P.C. till decision in Original Suit No. 7 of 2017.

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This order has been challenged in the present petition by the petitioners.

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Learned revisional court has allowed the revision on the sole ground that subject matter and parties in both the suits are common. Learned revisional court has

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rejected the contention raised on behalf of the petitioners that petitioner no. 1 was impleaded in Original Suit No. 7 of 2017 only on 11.07.2017, therefore, said suit shall be deemed to have been filed against them after filing of Original Suit No. 49 of 2017, i.e. 02.05.2017.

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Hon’ble Supreme Court in the case of Aspi Jal and another vs Khushroo Rustom Dadyburjor reported in (2013) 4 SCC 333 has held that for applicability of Section 10 of C.P.C., what is required is the matter in issue in both the suits has to be directly and substantially in issue. It has been further held that Section 10 of C.P.C. will not apply where a few of the matters in issue are common and will apply only when the subject matter in controversy is same.

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Para 12 of the said judgment is reproduced below:-

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“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 subject-matter of the two suits must be the same. This provision will not apply where 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 non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits

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on the same ground of non-user 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 non-user in the earlier two suits, but if they establish the ground of non-user 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”

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Similar view has been taken by Hon’ble Supreme Court in the case of National Institute of Mental Health & Neuro Sciences Vs C. Parameshwara reported in (2005) 2 SCC 256. Para 8 of the said judgment is extracted below:-

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“8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the -same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in

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

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In the present case, petitioner no. 2 is not a party to Original Suit No. 7 of 2017 and impleadment application filed by respondent no. 2 was allowed only on 11.07.2017. Original Suit No. 49 of 2017 was filed thereafter on 02.05.2017.

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Section 21 of Limitation Act provides that where a plaintiff or defendant is added subsequent to filing of the suit, as regards him the suit shall be deemed to have been filed on the date of such impleadment.

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Section 21 of the Limitation Act. 1963 is extracted below for ready reference:-

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“ 21 Effect of substituting or adding new plaintiff or defendant (1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

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Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.”

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From the aforesaid discussion, it is apparent that the subject matter in both suits is not identical. Parties in both the suits are also not common and cause of action is also different. Learned Trial Court was, therefore, justified in rejecting the application under Section 10 C.P.C. Learned Revisional Court erred in setting aside the order of Trial Court, and allowing the application.

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Accordingly, the impugned judgment and order dated 31.01.2019 passed by Revisional Court is set aside. The writ petition is allowed. It is further provided that both the suits, namely, Original Suit No. 7 of 2017 and Original Suit No. 49 of 2017 shall be heard together in the court of Civil Judge (S.D.), Kotdwar. Both the parties shall appear before learned trial court on or before 05.01.2021.

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Aswal

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(Manoj K. Tiwari, J.) 17.12.2020

Swami Shukdevanand Trust v. Sharad Chandra Mishra

Case brief

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What did the court decide?

Swami Shukdevanand Trust v. Sharad Chandra Mishra

Case brief

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