This Civil Revision Petition is filed against the fair and decreetal order dated 20.4.2008 passed in IA.No.305/2007 in OS.No.59/2005 by the learned Sub Judge, Devakottai.
2. The Petitioner is the 2nd Defendant in OS.No.59/2005, which was filed by the 1st Respondent/ plaintiff for the following reliefs:-
a)Permanent injunction restraining the Defendants 1 to 7 and their men from interfering in any manner whatsoever with the peaceful possession and enjoyment of the Plaintiff and the 8th Defendant in the suit property.
b)Direction to the contesting Defendants to pay the costs of the proceedings to the Plaintiff.
c)To grant such other reliefs.
3. The 1st Respondent/Plaintiff has filed a suit in OS.No.2678/1991 before the City Civil Court, Bangalore praying for delivery of possession of all the properties, records etc. and for rendition of accounts. The 1st Respondent had filed two applications in OS.No.2678/1991 seeking amendment of the pleadings and also for impleading the Petitioner as the 21st Defendant in OS.No.2678/1991 and the same are pending. Pending the said suit, the 1st Respondent is said to have filed the present suit in OS.No.59/2005 before the Sub Court, Devakottai.
4. According to the Petitioner/2nd Defendant, the subject matter in both the suits are one and the same and the outcome of the result of one suit will have a direct bearing on the other suit. It is stated that the cause of action for the suit in OS.No.2678/1991 and OS.No.59/2005 being the same, the ingredients of Section 10 of CPC directly attracted. Hence, the Petitioner filed an application in IA.No.305/2007 in OS.No.59/2005 for stay of the proceedings in OS.No.59/2005, but the trial court dismissed the said application by order dated 20.4.2008, holding that the cause of action and the suit property are different.
5. The learned counsel for the Petitioner submitted that the relief claimed in both the suits are based on the Will dated 13.10.1986 and the common issue to be decided is as to whether the Plaintiff in the suit can claim relief based on the Will dated 13.10.1986.
6. The Plaintiff has filed the suit in OS.No.2678/1991 for delivery of possession of all the properties, records, etc. of the 5th Defendant Trust and for rendition of accounts before the City Civil Court, Bangalore. According to the 1st Respondent, the suit property in OS.No.59/2005 i.e. Door No.13, 14, 15 and 16 measuring 58 cents in TS.No.89/9, the buildings and the compound wall and vacant site thereon was included in the Will dated 18.10.1984 to be bequeathed to the 5th Defendant Trust, but the said Will was cancelled by the subsequent Will dated 13.10.1986 of Adaikkappa Chettiar and he left the suit property to his intestate succession. According to the 1st Respondent, after the death of Adaikkappa Chettiar, the Plaintiff and his sister the 8th Defendant and mother inherited and took possession of the suit property and after the death of his mother, the Plaintiff and the 8th Defendant have been in joint possession and enjoyment of the suit property. It is stated by the 1st Respondent that on the instigation of the Defendants 1 to 4, the Defendants 6 and 7 are taking steps to trespass into the suit property and hence, the 1st Respondent had filed the suit for permanent injunction and consequential reliefs.
7. On the averments made in the plaint in OS.No.59/2005, the cause of action for the suit is said to have arisen on and from 26.6.2005 when the Defendants 6 and 7 tried to trespass into the suit property and demolish the building thereon. Whereas the suit in OS.No.2678/1991 is for delivery of possession of all the property and for rendition of accounts. Though the Petitioner has sought for stay of the proceedings in OS.No.59/2005 on the ground that the subject matter of the other suit in OS.No.2678/1991 is the same, but the copy of the plaint in OS.No.2678/1991 has not been filed.
8. Section 10 of CPC would apply only if there is identity of the matters in issue in both the suits meaning thereby that the whole of the subject matter in both the proceedings is identical and not merely one of the many issues which arise for determination in the two suits. But, in the case on hand, there is no identity at all with regard to the cause of action, suit property and also the reliefs sought for in both the suits.
9. On a perusal of available materials, it is seen that the subject matter of two suits are not the same and even assuming that the Will dated 13.10.1986 is the common issue, that would not make the subject matter identical.
10. I have considered the available records very carefully in the light of the submissions made by the learned counsel on either side.
11. The facts clearly disclose and also establish that the suit property in the present suit is absolutely distinct and separate from that of the earlier suit. The issues that are also being raised in the present suit cannot be identical, in view of the fact that the contention raised in the present suit is that the Defendants are trying to trespass into the suit property and demolish the building thereon, whereas the earlier suit is for delivery of possession of all the properties, rendition of accounts and production of records thereof. Therefore, it cannot be said that the matter in issue in both the suits are identical. It may be true that some of the issues more particularly relating to the Will, would be identical, but not all the issues. There is no identity at all with regard to the cause of action and the suit property and also the reliefs that are sought for.
12. In the case of British Indian Corporation Limited Vs. Rashtraco Freight Carriers [1996-4-SCC-748], which arose on facts that the goods entrusted by the Appellant to the Respondents - carriers for transportation and in spite of taking delivery goods were returned in its custody by the Respondent and the suit was laid by the Respondent claiming recovery of alleged dues payable by the Appellant towards arrears of transportation charges whereas the Appellant in its suit claimed recovery of goods lawfully entrusted and unlawfully detained by the Respondent and on the said facts, the application filed under Section 10 of CPC filed by the Respondent for stay of trial of the appellant's suit was allowed by the High Court of Allahabad, which was set aside by the Honourable Supreme Court on the ground that the causes of action in the two suits were entirely different and there is no common issue directly or substantially in issue in both the suits.
13. In view of the reasons stated above, I am of the considered opinion that the provisions of Section 10 of CPC are not applicable to the facts and circumstances of the case on hand and the court below has rightly dismissed the petition which does not call for any interference by this court.
14. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, the connected MP is closed.
Srcm To:
The Sub Court, Devakottai