1. The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India, challenging order dated 13.7.2011 passed by the learned Principal Civil Judge, Halvad in Civil Suit No.138 of 2007, whereunder, application Exh.18 preferred by the respondent under Section 10 of the Code of Civil Procedure, 1908 is allowed and the proceedings of Civil Suit No.138 of 2007 are stayed till final disposal of the Civil Suit No.93 of 2004.
2. This Court on 14.10.2011, passed the following order:-
“Heard learned advocate Ms. Parikh for the petitioner.
It appears from the copy of the plaint of Civil Suit No.93 of 2004 and Civil Suit No.138 of 2007 that the parties to both the suits are different and reliefs claimed in both the suits are also different. Even, there is no mention about survey number of the said property in Civil Suit No.138 of 2007.
Hence, Rule returnable on 15.12.2011.”
This petition is thus taken up for final hearing today.
3. It is the case of the petitioner that his father has filed Civil Suit No.93 of 2004, on 11.10.2004 against his brother and sister in the Court of learned Civil Judge, Halvad, for permanent injunction restraining the respondent from entering on the suit land bearing Survey No.917, admeasuring 2 acre 34 gunthas situated at village Malaniyad, Taluka Halvad and also for permanent injunction restraining the respondent from transferring, selling or in any way alienating the suit property as also any other property which may be found of his father, i.e. plaintiff of the above-said suit. The petitioner has further averred that the above suit is pending and the application for interim injunction is also awaiting decision thereon. The petitioner has further stated in the petition that he is in occupation of a house since 1998 and the respondent- his uncle, is threatening his possession and trying to oust him from the possession of the house and therefore, a need had arisen to file Civil Suit No. 138 of 2007, for permanent injunction, restraining the respondent from causing any damage to the articles/ belongings of the petitioner and also from illegally taking away the possession of the suit house, wherein also, an application for interim injunction is preferred at Exh.5 which is pending and awaiting decision thereon. The petitioner has further averred that in the suit filed by the petitioner, being Civil Suit No.138 of 2007, the respondent has filed an application at Exh.18, for stay of the proceedings of Civil Suit No.138 of 2007, on the ground that, earlier suit on the same issue, being Civil Suit No.93 of 2004 filed by the father of the petitioner is pending and therefore, the proceedings of the civil suit filed by the petitioner are required to be stayed under Section 10 of the Code of Civil Procedure (for short, 'the Code'). The learned Judge has allowed the said application which is under challenge before this Court.
4. I have heard the arguments of both the learned advocates for the parties and have also perused the plaints of both the Civil Suits, being Civil Suit No.93 of 2004 and Civil Suit No.138 of 2007. I have also perused the order passed by the learned Judge.
5. Learned advocate for the petitioner submitted that the learned Judge has exceeded in his jurisdiction while allowing Exh. 18 application though the ingredients of Section 10 of the Code were not at all satisfied. She submitted that the issue in both the suits as also the cause of action are totally different. She submitted that the earlier suit was for permanent injunction, restraining the respondent from entering on the land bearing Survey No.916 and also for permanent injunction restraining the respondent from transferring or in any way alienating the above-said land as also the other properties of the father of the petitioner. Whereas, the later suit is for restraining the respondent from in any way damaging the articles/ belongings of the petitioner and his family members as also from taking away the possession of the residential house which has been in occupation of the petitioner right from 1998. She would, therefore, submit that in the later suit, the prayer is made simply to protect the possession of the residential house and to see that the respondent may not take law in his hand and may not evict the petitioner without following the due procedure of law. She states that the later suit is filed on the basis of the possession of the suit house and the petitioner is entitled to protect the possession of the suit house irrespective of even title.
She further submitted that in no circumstances, the issue involved in the earlier suit can be said to be the same or similar issue involved in the later suit. She submitted that even if the right, title and interest are not decided in the later suit, still as per the settled principle of law, the possession can be protected as against the person who wants to take law in his hand. She states that the suit is filed against the illegal or high-handed and apprehended action on the the part of the respondent. She, therefore, submitted that the learned Judge has committed grave error while coming to the conclusion that the issue involved in both the suits is same and similar in nature. She, therefore, submitted that the learned Judge having exceeded his jurisdiction in allowing the application Exh.18, the impugned order passed by the learned Judge is required to be quashed and set aside by this Court by exercising the powers under Articles 226 and 227 of the Constitution of India.
6. As against the above arguments of the learned advocate for the petitioner, learned advocate Mr. Shah for the respondent submitted that what is required to be seen, is whether the issue in both the suit is similar or the same and not the prayers made in both the civil suits. He would submit that the purpose and intent of the provisions of Section 10 of the Code is to see that the litigant may not have to face second or any other litigation on the same issue and since the father of the petitioner has already initiated the proceedings by filing Civil Suit No.93 of 2004, in respect of the very property in question, the son, is now filing the suit, though putting cleverly different prayers but for getting the decision on the same issue in respect of the same property which is the subject matter of earlier suit.
6.1. Learned advocate Mr. Shah has submitted that while deciding the question as to whether the proceedings of subsequent suit are required to be stayed or not under Section 10 of the Code, prayers made in two different suits are not governing factors but the issue in both the suits are prime factors to be considered. Learned advocate Mr. Shah took me through the averments made in the plaint of first suit, being Civil Suit No.93 of 2004, specifically para 7(C) and pointed out that the second suit is filed in respect of the same house, which is already the subject matter of the earlier suit. He submitted that the prayers made in the later suit could have been made in the first suit also and therefore, simply because different prayer is made in the another suit, that by itself would not be sufficient to hold that the issue in the second suit is also not the same. Learned advocate Mr. Shah has also relied upon a judgment of the Hon'ble Supreme Court in the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962 SC 527. He laid emphasis on para 39 of the same judgment, which reads as under :-
“39. The suit at Indore which had been instituted later, could be stayed in view of S. 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under S. 151 is not justified. The provisions of S. 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. It does not appear correct to say, as has been said in Ram Bahadur Thakur and Co. v. Devidayal (Sales) Ltd., ILR (1954) Bom 334: (AIR 1954 Bom 176), that the Legislature did not contemplate the provisions of S. 10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of S. 35A indicate that the Legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for compensatory costs. The Legislature could have therefore provided for the non-application of the provisions of S. 10 in those circumstances, but it did not. Further, S. 22 of the Code provides for the transfer of a suit to another Court when a suit which could be instituted in any one of two or more Courts is instituted in one of such Courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is clear, therefore, that the Legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in that other Court.”
7. I am bound by the judgment of the Hon'ble Supreme Court and on interpretation of Section 10 of the Code. However, the decision cited by learned advocate Mr. Shah (supra) would not be of any help to the respondent. In the case in hand, as stated above, the issue involved in both the suits cannot be said to be the same and the similar. The object and intent of the provisions of Section 10 of the Code, as ruled by the Hon'ble Supreme Court, in the above-said judgment, as stated above, are very clear and whenever it is found that the issue in the later suit between the same parties is same and similar, proceedings of the suit filed in later point of time are required to be stayed, otherwise, the very object and intent of the provisions of Section 10 of the Code would be frustrated. But, so far as the case of the petitioner is concerned, he has, while pointing out the prayers in the later suit, also pointed out that in no circumstances, the issue of the later suit could be said to be the same or similar of the nature of the earlier suit. It is clear case that the second suit is filed to protect his possession and that could be seen from the cause of action of the second suit, wherein it is clearly stated that the respondent on 20.10.2007 had tried to take the law in his hand and attempted to oust the petitioner from his house. From the plaint, it could be seen that the second suit is filed with only and simple purpose to protect the possession of the residential house and the prayer is just to restrain the respondent from taking the law in his hand by adopting illegal method.
8. In view of the above-said facts and circumstances of the case, I am of the opinion that the learned Judge has clearly exceeded in his jurisdiction while concluding that the issue involved in the first suit is same and similar in nature of the second suit. Hence, the petition is required to be accepted and the allowed. Accordingly, the petition is allowed and the impugned order passed by the learned Civil Judge, Halvad dated 13.7.2011 in Civil Suit No.138 of 2007 below Exh.18 application is hereby quashed and set aside. Rule is made absolute. No costs.
omkar Sd/-
(C.L. SONI, J.)