The petitioner herein is the original plaintiff in Regular Civil Suit No. 80 of 2012 preferred before the learned 7th Additional Senior Civil Judge, Badodara, for declaration and injunction in respect of the Suit property being Revenue Survey No. 393, 433, 435/1 and 444 of Village Undera, District-Badodara. A declaration is sought of the nature that the suit land is the ancestral land of the plaintiff and the defendants, and that they have equal share and also equal right to share the men se profit. A Regular Civil Suit No. 53 of 2012 is filed by the respondents no. 1 and 2 herein for partition on 28th January 2012 against the petitioners and others in respect of the land bearing Revenue Survey no. 393, 433, 435/1 and 444 of Village Undera, District Vadodara. It is also averred and pleaded by the respondent nos. 1 and 2 therein that they have equal share in the same, with a specific averment that the land bearing Revenue Survey no. 433 and 435/1, the respondent nos. 1 and 2 are doing cultivation with a further averment that the suit land of Revenue Survey no. 393 is being cultivated by the present petitioner (the defendant no. 1 in Regular Civil Suit no. 53 of 2012) and the revenue survey no. 444 is being cultivated by the respondent no. 4 herein.
The petitioner herein subsequently filed a Regular Civil Suit on 1st February 2012 for declaration and injunction being Regular Civil Suit no. 80 of 2012 inter-alia praying that he is the sole owner of the land situated at new survey no. 433/4 and 444/paiki of village Undera, District-Vadodara, with a further prayer to permanently restrain the respondent herein from cultivating the suit land and with a declaration that they have no right to prevent the petitioner from cultivating the land.
An application for temporary injunction has already been moved. Thus, it could be noted that after the previously instituted Regular Civil Suit no. 53 of 2012 for partition was filed by the respondent nos. 1 and 2 herein on 20th January 2012, this petitioner preferred Regular Civil Suit no. 80 of 2012 on 1st February 2012 in respect of the very same land.
The respondent nos. 1 and 2 herein instead of filing the reply preferred an application under Section 10 of the Code of Civil Procedure inter-alia urging for stay of the suit and the trial court after hearing both the sides acceded to such a request vide its order dated 30th April 2012 passed below Application Exh. 16. The impugned order is challenged in the present petition mainly on the ground that both the Civil Suits are different and even the prayers in the same are different. Moreover, any final decision reached in the Civil Suit would not operate as res judicata in the subsequently filed suit, and therefore, the matter is not directly and substantially in issue to the suit preferred by the present petitioner. It is further submitted by the petitioner that the trial of both the suits need to be stayed and not the application for injunction seeking the relief. Reliance is placed on the decisions of this Court rendered in case of Kasturben Gordhandas Mistry Vs. Globe Engg. Corpn., Rajkot & Anr., reported in 1988 (1) G.L.H. (U.J.) 2 and in case of Malti Bahuji and Ors. Vs. Maharajshri Natwargopalji Goswami & Ors., reported in 1983 G.L.H.1012 that the application for injunction can be heard even when there is an application preferred under Section 10 CPC.
This court in these decisions has held that if the suit is stayed under Section 10 CPC by an order that would not prevent the court from hearing the matter and passing interlocutory orders thereon. Section 10 of the Code of Civil Procedure provides that no court shall proceed with the trial of any suit in which the matter in issue is also directly an substantially in issue in a previously instituted suit between the same parties. However, that does not prevent the court from making interlocutory orders, such as orders for a receiver, or an injunction, or an order for attachment before judgment. The court was of the opinion that to protect the right of the parties and to avoid further complications and unnecessary inconvenience, such interim applications can always be heard; even in the matters, where the trial of the subsequently filed suit is stayed under Section 10 CPC .
On thus having heard learned advocate Shri S.P. Majmudar for the petitioner and on having examined the documentary evidence with his assistance, as also on close perusal of the order impugned, this court is of the opinion that no interference is called for in this matter for the reasons tobe followed herein after.
As is decided in case of National Institute of Mental Health & Neuro Sciences v. Dr. K. Kalyana Raman & Ors., reported in AIR (2005) SC 242 that the fundamental aspect, while dealing with Section 10 CPC is whether, on final decision being reached in previously instituted suit, such decision would operate as res judicata in subsequently filed suit. It has been specified in the said judgment that when the entire subject matter of both the suits is identical, Section 10 CPC can be employed.
An attempt is made by the present petitioner, who is defendant in the previously instituted suit, to mark a distinction by emphasizing that Section 10 would apply only when there is identity in a matter at issue in both the suits and it is further emphasized that the whole of the subject in both the proceedings is not identical, nor are the prayers in any manner would lead the court to stay the suit under Section 10 CPC as has been done by the trial court. Emphasize is also made by pointing out from the pleadings of subsequently instituted civil suit where the suit is for declaration and permanent injunction in respect of the properties which are incidentally identical.
On close examination of previously instituted suit, as also subsequently preferred suit by the present petitioner, it can be said that as the object underlining Section 10 CPC is to prevent the courts of concurrent jurisdiction to try two parallel suits in respect of the same issues, although there is an attempt to cleverly draft subsequently instituted suit, the matter in issue is directly and substantially in issue in the subsequently preferred suit, and therefore, to avoid recording of conflicting findings on the issues, both the suits as correctly held by the trial court can not proceed with and section 10 CPC shall have to be employed.
As can be noted from the Regular Civil Suit no. 53 of 2012, that the same is a suit for partition for the very same properties for which the present petitioner has preferred a regular civil suit for declaration and injunction claiming to be the exclusive owner. It is also needed to be mentioned that there is an insistence on the part of the petitioner to proceed with the interim applications for injunction, where he has averred to have been cultivating all parcels of land. Whereas, the respondent nos. 1 and 2 herein, in the suit preferred by them have specified for two parcels of the land having been cultivated by them and two other parcels of land are being cultivated by the present petitioner as well as the respondent no. 4 herein. This application for injunction is yet to be heard by the trial court and the petitioner, if is apprehensive of his dispossession on account of allegedly wrongly preferred suit by the respondents, also has recourse of preferring an application for counter injunction in a previously instituted suit. However, he can not insist upon application for injunction to be decided necessarily before the stay of the suit under Section 10 CPC. If there are such contingencies where the court is of the opinion of that non hearing may lead to complications or unnecessary inconvenience as has been ruled by this court in case of Kasturben Gordhandas Mistry (Supra), the trial court may not be powerless to hear such application for injunction while staying the suit under Section 10 CPC. But, that would not entitle the party to insist upon hearing of the application for injunction in a subsequently instituted suit knowing fully well the existence of the previously instituted suit as also application for injunction preferred in that. As mentioned herein above, all the contentions raised in an application for injunction preferred by this petitioner are in complete contradiction to what has been pleaded by the respondent no. 1 and 2 in their application for injunction and such rival claims are yet to be determined by the court and therefore, any apprehension on the part of the petitioner of their right being jeopardized in the event of the trial of the suit being stayed is misplaced.
This court shall have to keep in mind that this petition is preferred under Article 227 of the Constitution of India, where learned advocate for the petitioner has failed to point out any material illegality, or perversity affecting the right of the petitioner. There is obviously no illegality in the order passed by the trial Court in staying the suit. As can be noted from the order, it has taken care of the provisions as well as the law on the issues.
This petition being devoid of any merit, requires no indulgence. Resultantly, this petition stands dismissed with no order as to costs.
{Ms.
Sonia Gokani, J.} Prakash* Top