Judgment:
ORDER
P.S. Narayana, J.
1. Heard Sri Gopal Das, the learned Counsel representing the Revision Petitioners and Sri Kalyan Singh representing Sri M.S. Ramchandra Rao, the Counsel for R.1.
2. The Civil Revision Petition is filed by the Revision Petitioners being aggrieved of an order made in I.A. No. 442 of 2007 in O.S. No. 147 of 2002 on the file of Principal Senior Civil Judge, Guntur.
3. Sri Gopal Das, the learned Counsel representing the Revision Petitioners would maintain that the learned Principal Senior Civil Judge, Guntur totally erred in dismissing the application filed under Section 10 of the Code of Civil Procedure (hereinafter in short referred to as 'the Code' for the purpose of convenience) having observed that though essentially the parties involved are the same and the subject matter in both the suits also being the same, on the ground that the causes of action in these suits being different, definitely cannot be sustained. The Counsel also pointed out to the language of Section 10 of the Code and further would maintain that inasmuch as the basis of the documents executed by Sri M. Venkatanarayana in favour of plaintiff - respondent being the subject matter in the appeals before this Court, even in the interest of Justice, the application filed under Section 10 of the Code should have been allowed. The Counsel also relied on certain decisions.
4. On the contrary, Sri Kalyan Singh representing Sri M.S. Ramchandra Rao would maintain that Section 10 of the Code is not applicable to appeals. The Counsel also would further submit that in the light of the facts and circumstances since the documents which are being relied upon in both the suits being different and the causes of action being different, the ingredients of Section 10 of the Code would not made applicable and hence in the light of the same, the impugned Order does not suffer from any illegality whatsoever and hence the Civil Revision Petition is liable to be dismissed.
5. In the light of the submissions made by the Counsel on record, the following points arise for consideration in the present Civil Revision Petition:
(1) Whether the order under challenge in the Civil Revision Petition made under Section 10 of the Code to be confirmed or to be modified or to be set aside in the facts and circumstances of the case?
(2) If so, to what relief the parties would be entitled to?
6. Point No. 1: The Revision Petitioners filed I.A. No. 442 of 2007 in O.S. No. 147 of 2002 on the file of the Principal Senior Civil Judge, Guntur under Section 10 of the Code praying for stay of all further proceedings of the suit pending disposal of the Appeal in A.S. No. 1112 of 2003 and the connected appeals which are pending before this Court. The 2nd petitioner who is the 3rd defendant in the suit had stated that the suit was instituted by the 1st respondent - plaintiff for declaration of her title and recovery of possession of the plaint schedule properties and for declaration that the defendants are only trespassers and the subject matter of the earlier suit filed by the 1st respondent O.S. No. 80 of 85, O.S. No. 287 of 85 and O.S. No. 342 of 86 on the file of Principal Senior Civil Judge, Guntur and also O.S. No. 266 of 83 filed by one Gangamma claiming to be the 2nd wife of one late Venkata Narayana from whom the 1st respondent claims to have derived the plaint schedule properties by virtue of gift. The 1st respondent - plaintiff filed the said earlier suits for declaration of her title in respect of the plaint schedule properties on the basis of a will dt. 12-5-76 said to have been executed by one late Bramaramba, while her husband i.e., the father of the 1st respondent - plaintiff herein pleaded that he was entitled to the property on the basis of a registered will executed by the said Bramaramba. All the suits were clubbed together and a common Judgment was delivered on 30-11-98. The appeals preferred as against the said Judgments and Decrees before the District Court, Guntur had been transferred to the High Court as A.S. Nos. 1112 of 2003, 1191 of 99, 1053 of 2003 and 405 of 2003 and as the property which is the subject matter in the suit also happens to be the subject matter of the said appeals pending before the High Court, all further proceedings in the suit be stayed till the disposal of A.S. No. 1112 of 2003 by the High Court. The stand taken by the contesting respondent is that the causes of action being different, the ingredients of Section 10 of the Code are not applicable and hence, the application to be dismissed.
7. The learned Principal Senior Civil Judge, Guntur having formulated the point for determination at para 6, recorded reasons at para 7 and observed that though essentially the parties involved as well as the subject matter in the present suit as well as the said O.S. No. 80 of 85 may be the same, the Court has to bear in mind the fact that the causes of action for the suits are different and as such, the Court is of the opinion that the provisions of Section 10 of the Code are not applicable to the present case and accordingly dismissed the application.
8. It may be appropriate to have a glance at Section 10 of the Code and it reads as hereunder:
Stay of suit: No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation: The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.
9. The learned Counsel for Revision Petitioners placed strong reliance on Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. : AIR 1983 Calcutta 199 wherein at paras 11 and 12 the Division Bench of Calcutta High Court observed as hereunder:
In the instant case as observed herein-above the subject matter in controversy is the same. Such controversy arises from out of the same contract and from the same transactions. Just as there is the question of claiming price of goods in the one suit arising out of the same contract so there is also the question relating to refund on account of the excess amount paid in advance, Similarly, out of the same contractual relationship arose the controversy relating to demurrage and the question as to whether the property in the goods had passed or not. All these matters are in controversy arising out of the same transactions and the same contract. But the reliefs claimed by the parties are based on different causes of action which arose within the framework of the same subject matter in controversy. As observed in the case of Arun General Industries Ltd. v. Rishabh . : AIR 1972 Cal. 128 at p.139.
the matter for determination in the cage of an application for stay under Section 10 of the Code is not what the basis of the claim in the two suits is but what is the matter in issue in the two suits.There it was also observed that,
if a claim based on a contract in one suit, is sought to be avoided and repelled on the ground of fraudulent misrepresentation and a subsequent suit is filed claiming damages on the basis of fraudulent misrepresentation with regard to the same contract the issues nevertheless in the two suits would be substantially the same, even though the basis of the claim in the two suits are altogether different.With respect, I fully agree with the aforesaid observation. When the subject matter in controversy is the same then it is immaterial that a further question, such as, demurrage has been raised in the subsequent suit. That further question too is verily involved within the scope of the subject matter in controversy. The fact that the plaintiff in the Calcutta Suit has specifically reserved its right to file a suit for the reliefs which it is entitled to claim in the Andhra Suit and which it chooses not to claim therein, cannot be a consideration for refusing to grant stay of the Calcutta Suit. If the plaintiff in the Calcutta Suit would choose not to agitate the said further question relating to demurrage in the Andhra Suit then all that might ultimately happen is that if stay is granted of the Calcutta Suit then such further question as to demurrage could be agitated after the Andhra Suit will be disposed of, subject however to the plea of res judicata or constructive res judicata that might arise at such stage of the proceeding. If the Calcutta Sail is stayed I do not think how the plain-tiff herein would be prejudiced if it would ask for leave to amend its written statement in the Andhra Suit to incorporate the said further question or claim.
In that view of the matter we do not think that the learned Judge rightly considered the matter when he held that these questions were separate from and independent of the question whether the property in the goods had in fact passed on to the respondent.
Further strong reliance was placed on the Division Bench of Bombay High Court in J.H. Iron Mart v. Tulsiram : AIR 1953 Bombay 117 wherein at paras 3, 5 and 8 it was observed as hereunder:
Turning now to appeal No. 59 of 1952, the question that we have to consider is whether the matter in issue in the Bombay suit is directly and substantially in issue in the previously instituted Calcutta suit. The learned judge below has taken the view that it is not so and therefore has refused to stay the suit. Now, a few facts may be stated. The Calcutta suit was filed by the appellants on a contract dated 4-11 -1951, and their case was that the contract was for a sale by them of 1898 tyres to the respondents. Their further contention was that these tyres were according to certain specifications and they contended that the plaintiffs failed to take delivery of these tyres and therefore they filed a suit for damages for non-acceptance.
In the Bombay suit the respondents sued on the same contract of 4-11-1951, but their contention was that under this contract they had contracted to purchase only 1,600 tyres and not 1,898 tyres. Further the contention was that these 1,600 tyres were not according to specifications but they were according to certain contract quality, and their grievance in the Bombay suit was that the tyres that were delivered were not according to contract quality. 'they, therefore, filed a suit for refund of a certain amount in respect of the price they had paid for tyres which were not according to contract quality and also for damages for non-delivery. This is the nature of the two suits and the question arises whether looking to the nature of these two suits it could be stated that the matter in issue in the Bombay suit is directly and substantially in issue in the Calcutta suit. Apart from any authority, turning to the section itself, it will be clear that Section 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical.
What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the Legislature in Section 10 that the identity required is a substantial identity. It is true, as the authorities have laid down, that there must be an identity of the subject-matter, it is equally true that the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same.
Now, what is the position in the case before us. The plaintiffs in the Calcutta spit rely on one version of the contract. The respondents as the plaintiffs in the bombay suit rely on a different version of the same contract, and the real subject-matter of the suit and the field of controversy between the parties is, what is the contract which was entered into between the parties and what are the terms of that contract. Whatever reliefs the plaintiffs may seek in the Calcutta suit and whatever may be the reliefs which the respondents may seek in the Bombay suit, these reliefs are incidental to the decision which the Court must come to as to what was the contract between the parties. Therefore, if the Calcutta High Court in the previously instituted suit were to decide that the contract was either as the appellants pleaded or as the respondents pleaded, that decision must operate as res judicata in the Bombay suit.
The result, therefore, is that we allow the appeal, set aside the order of the learned Judge below, and order that the Bombay suit should be stayed under Section 10 until the hearing and final disposal of the Calcutta suit. Appeal allowed with costs. Appellants also to get the costs of the notice of motion in the Court below. Appeal allowed.
Reliance also was placed on Rana v. Union of India : AIR 1979 Delhi 118 wherein the learned Judge at paras 12 and 13 observed as hereunder:
The learned Counsel for the plaintiff contended that the matter in issue in the present suit and the previous suit is not the same and, therefore, Section 10, Code of Civil Procedure, is not applicable. He contends that the words 'matter in issue' used in Section 10 mean, entire subject matter of the subsequent suit and the previous suit must be the same. He further contends that in the previous suit the subject matter was recovery of Rupees 1,10,000/- while in the present suit the subject matter is recovery of Rs. 18 lacs. I do not agree with this view of the learned Counsel for the plaintiffs. In my opinion the words 'matter in issue' in Section 10 of the Code of Civil Procedure mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit. It can never be expected that a plaintiff would file a case against the same defendant for the same amount and claiming the same relief. In suits for recovery of rents a landlord can never file two suits claiming rent of the same period and claiming the same amount of rent. In my view, words 'matter in issue' do not mean entire subject matter in issue in the two suits. If the interpretation as put by the learned Counsel for the plaintiffs is accepted, it appears to me that Section 10 of the Code of Civil Procedure would become redundant and there would be lot of litigation before the Courts trying the same set of facts again and again. Applying the test of principles of res judicata for the stay of the suit, I am of the view that the decision on various points in question in the previous litigation between the parties pending at the stage of appeal, would operate as res judicata in the present suit, and the suit can be disposed of in terms of the findings that may be given in appeal. If the present suit is not stayed, it would result in unnecessary trial of the suit and litigation expenses of the parties. Moreover, there may be possibility of conflicting Judgments in the two proceedings.
An appeal is a continuation of the suit and, therefore, the provisions of Section 10 of the Code of Civil Procedure apply to the previous suit, which may be at the stage of appeal. The plaintiffs in the present suit in para 37 of the plaint have pleaded that all the defences raised by the defendants in the previous litigation against them are barred by the rule of res judicata and that adjudication of the same would now be barred under Section 11 of the Code of Civil Procedure. The plaintiffs claim that they are entitled to succeed in the present suit on the ground that there is no legal and factual ground which remains undecided and that the decision of the previous three suits completely bars all possible defences, on all points to the present suit whether or not they were actually raised in the previous suit. In view of these pleadings of the plaintiffs I see no ground to refuse stay of the present suit under Section 10 of the Code of Civil Procedure.
Reliance also was placed on Laxmi Bank v. Harikisan : AIR 1948 Nagpur 297 wherein the learned Judge at para 6 observed as hereunder:
It is clear from the order of the lower Court that it has misdirected itself on very vital points resulting in the refusal to exercise jurisdiction or acting in the exercise of jurisdiction with material irregularity. Evidently, the learned Judge has misunderstood and misapplied the decision in Mahaganpathi v. Natesa Iyer AIR 1935 Mad. 112. According to that decision the subject matter of the subsequent suit must be covered by the previously instituted suit and not the vice versa. It is obvious that the subject matter of civil suit No. 2-B of 1946 is covered completely by civil suit N0.6-B of 1943 but the lower Court somehow misapprehended the correct position under a wrong belief that according to the ruling the subject matter of the two suits should be in every respect identical. The lower Court thus acted in the exercise of its jurisdiction under Section 10, C.P.C., with material irregularity. Further the lower Court denied to itself the jurisdiction to stay the suit under Section 151, C.P.C., by misunderstanding the decision in Naskarparha Jute Mills Co. Ltd. v. Nirmal Kumar ILR (1941) Cal. 373. The lower Court failed to see that in that case the learned Judges of the Calcutta High Court have discussed the scope and the application of the inherent powers of the Court now recognized in Section 151, C.P.C., and these powers are open to the High Court and to the subordinate Court alike. This resulted in the non-exercise of jurisdiction which the lower Court had under Section 151 of the Code i.e., apart from Section 10, C.P.C., in suitable cases. In the unreported Judgment passed by this Court in second appeal No. 395 of 1946 it is held that a subsequently instituted suit could be stayed under Section 151, Code of Civil Procedure, even though Section 10 of the Code may not strictly apply. The same view is taken in Kader Mal Jethanand v. Tilak Ram AIR 1929 Lah. 12 and Dwarka Das v. Governor-General in Council AIR 1947 Lah. 28. Even before the Code of 1908 which gave a statutory recognition to the inherent powers of a Court such a power was recognized as appears from Durga Dihal Das v. Anoraji 17 ALL. 29, Hukum Chand Baid v. Kamalanand Singh 33 Cal. 927 and other cases. In Hukum Chand Baid's case Woodroffe J. observed:
Law cannot make express provisions against all inconveniences, and that the Court had, therefore, in many cases where the circumstances warranted it, and the necessities of the case required it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real and substantial justice for the administration of which it alone exists.These observations are cited with approval in Bhagat Singh Bugga v. Dewan Jagbir Sawhney ILR (1941) Cal. 490 and Dhaneshwar Nath v. Ghanshyam Dhar ILR (1940) AII. 201.
The Counsel for contesting respondent no doubt strongly relied on the decision of the Madras High Court in S.D. Dhandapani v. Branch Manager, Indian Overseas Bank AIR 2002 Mad 442 : 2002 (6) ALT 9.1 (DN OHC) wherein at paras 5, 6 and 7 it was observed as hereunder:
As per Section 10, Code of Civil Procedure, no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties.
The word 'suit' is important for our purpose. As per the provisions of Order 4, Rule 1, Code of Civil Procedure, every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in its behalf. Therefore, the word 'suit' ordinarily means a civil proceeding instituted by presenting a plaint.
In a company proceedings, no plaint is presented and hence, it cannot be regarded as a proceeding based on a suit. Therefore, when the proceedings are not based on a suit, they cannot be regarded as a trial of a suit and hence, the suit for recovery of money is pending before the trial Court could not be stayed.
10. It is needless to say that the decision of the Madras High Court referred to supra is in relation to a Company Petition which cannot be termed as a suit and hence in that context it was held that Section 10 of the Code cannot be invoked to stay the proceedings of the suit. Even in the light of the findings recorded by the learned Principal Senior Civil Judge, Guntur, it is not in controversy that the parties are the same and the subject matter also is the same, may be the causes of action on the strength of which the suits had been instituted may be different. In the light of the facts and circumstances, this Court is satisfied that inasmuch as the ingredients of Section 10 of the Code are satisfied, the learned Principal Senior Civil Judge, Guntur, totally erred in dismissing the application having observed so but on the ground that the causes of action for the suits are different. Hence, this Court is of the considered opinion that in the light of the admitted facts, the ingredients of Section 10 of the Code are satisfied.
11. Point No. 2: In the result, the impugned Order is hereby set aside and the Civil Revision Petition is hereby allowed. No order as to costs.
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