IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8776 of 2011 For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as 4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= BALWANTBHAI HIRABHAI PATEL - Petitioner(s) Versus SATYAM COOPERATIVE FARMERS SOCIETY THRO'ADMINISTRATOR & 1 -
Respondent(s) ========================================================= Appearance :
MR RD DAVE for Petitioner(s) : 1, MR ASHISH H SHAH for Respondent(s) : 1, UNSERVED-EXPIRED (N) for Respondent(s) : 2, NOTICE SERVED for Respondent(s) : 2.2.1 ========================================================= :
CORAM HONOURABLE Ms. JUSTICE SONIA GOKANI 4th July 2012 CAV JUDGMENT The petitioner is original plaintiff of regular Civil Suit No.
242 of 1998 and the respondents are the original defendants.
Petitioner is a business man and owner of several movable and immovable property; one of which is a piece of agricultural land bearing survey No. 162(2+3) admeasuring 0- 96-11 HEC.-ARE-SQM situated at Bodakdev, District Ahmedabad.
An agreement to sale dated 25th December 1980, was executed by the petitioner in favour of the respondent No. 1 Satyam Cooperative Farmer's Society (proposed). The period of this agreement of sale was one year and earnest money was paid to the tune or Rs. 17,500/=.
The Respondents committed breach of agreement to sale and therefore sale deed was not executed. Resultantly, the respondents vide Special Civil Suit No. 229 of 1991 prayed for specific performance of agreement to sale. The said suit was dismissed by the Trial Court vide judgment and decree dated 30th December 1998.
First Appeal was preferred by the respondent herein being First Appeal No. 473 of 1998 which was admitted. However that appeal came to be dismissed for want of prosecution. In the mean time, the petitioner filed regular Civil Suit No. 242 of 1998 seeking declaration and permanent injunction.
An application Exh. 93 was moved by the respondent herein to stay the proceedings of the suit under Section 10 CPC.
After hearing both the sides the trial court allowed such an application and stayed the suit. The said order is impugned in this writ petition preferred under Article 227 of the Constitution of India.
Learned advocate Shri R.D. Dave appearing for the petitioner urged that the subsequently filed suit though was in respect of the same suit land and was between the same parties, the cause of action was completely different and the reasons for bringing about the suit was when an attempt was made by the respondents herein to forcibly dispossess the petitioner. He, therefore, urged that stay of the suit would amount to giving premium to the wrong doers. There are various counts on which earlier suit preferred by these respondents was not tenable; one of which is that the suit was preferred by the society and the under the Gujarat Cooperative Society Act does not permit the Society to enforce agreement to sale in favour of the proposed/unregistered Cooperative Society; as such a Society is not a legal entity. He sought to rely upon following decisions :
[a] In case of Indian Bank v. Maharashtra State Cooperative Marketing Federation Limited, reported in AIR 1998 SC 1952;
[b] Aadhumik Patel Park Cooperative Housing Society Limited & Anr. vs. State of Gujarat & Ors., reported in AIR 2010 Gujarat 180;
[c] Chitrakut Dham Cooperative Housing Society Limited, Mahuva v. Kharak Haribhai Ravjibhai Bhalariya & Ors., reported in 2010 (1) GLR 430; and
[d] Mahangu Prasad Sah & Anr. vs. Prayag Sah & Ors., reported in AIR 1975 Gauhati 40.
Learned advocate appearing for the respondent Society urged that the final outcome of the pending First Appeal No. 473 of 1998 would have a direct bearing on the subject matter of the Regular Civil Suit No. 242 of 1998 of the present petitioner, and therefore, at this stage, no interference is required in a petition preferred under Article 227 of the Constitution of India.
It is further urged that if the suit is allowed to be proceeded with, any decree passed in the suit would result into a conflict of decision to be rendered in First Appeal No. 473 of 1998 and that would cause multiplicity of proceedings and hence, no interference should be made in the order impugned.
On thus having heard learned advocate for the parties and on perusal of the record as also keeping in mind the ratio laid down in this regard, at the outset, it needs to be stated that it is a settled law that any Society which is not a registered or which is a proposed Society cannot bring the suit for the purpose of enforcing the agreement to sale executed in favour of the proposed/unregistered society.
On the basis of this settled law, it has been fervently submitted by the learned advocate for the petitioner that Special Civil Suit No. 229 of 1991 was not maintainable. Since the suit has been dismissed on the ground of maintainability of the suit. In a pending First Appeal No. 473 of 1998, this issue of maintainability and other issues shall be examined. The fact is not in challenge that both the suits are between same parties and the underlying object of Section 10 CPC is to prevent the Court of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action and the same subject matter. This is with a laudable object of avoiding conflicting decisions as also to prevent multiplicity of proceedings. An application which was moved by the respondent herein in a subsequently preferred suit by the petitioner, the trial Court deemed it fit to stay the proceedings under Section 10 CPC.
The Apex Court in case of Indian Bank v. Maharashtra State Cooperative Marketing Federation Limited [Supra] has observed that, “...The course of action which the Court has to follow according to S. 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 it has to be stated that the word 'trial' in S. 10 is not used in its widest sense. Considering the objects of both the provisions, i.e., S. 10 and O.37 wider interpretation of the word 'trial' is not called for. The word 'trial' in S. 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' 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 condition on which leave to defend is granted. Thus the concept of trial as contained in S. 10 of the Code is applicable only to a regular/ordinary suit and not to a summary suit filed under O.37.”
The Apex Court, interpreting the trial in Section 10 CPC, noted in widest sense and held that the object and nature of the provisions is that passing of interlocutory order would be permissible.
As the Code prohibits the trial court from proceeding with the trial of any suit in which the matter at issue is also directly and substantially in issue in a previously instituted suit, provided other conditions in the Sections are satisfied, the trial is required to be stayed and the Court having found such conditions existing in a subsequently instituted suit, it has stayed the trial of the subsequently instituted suit.
No error appears to have been made in staying such suit as this Court is also of the opinion that any out come of first appeal will automatically decide some of the vital issues which have been raised by the petitioner in a subsequently instituted suit.
Apprehension vindicated by learned advocate Shri R.D. Dave of respondents forcibly disposing the petitioner herein; despite the dismissal of his suit of the year 1991. As pointed out by both the sides, there is already an order of injunction favouring the petitioner herein, and therefore, it is being clarified by this Court that, that protection shall continue till the final outcome of First Appeal.
Resultantly, this petition fails and the same stands dismissed. Notice is discharged with no order as to costs.
{Ms. Sonia Gokani, J.} Prakash*