Judgment:
ORDER
Aravind Kumar, J.
1. This is a defendants revision petition questioning the order dated 12.03.2010 passed on I.A. No. 8 whereunder the said interlocutory application filed under Section 151 Civil Procedure Code seeking dismissal of the suit has been dismissed.
2. The facts in nutshell are as follows:
A suit in O.S. No. 304/2005 was filed on 11.01.2005 by the respondents No. 1 to 5 herein on the file of the Additional City Civil Judge, Bangalore seeking a relief of perpetual injunction to restrain the defendants, their agents or any one claiming through them from interfering with the plaintiffs peaceful possession and enjoyment of the schedule property. It was stated in the said suit that the cause of action for the suit arose on 08.01.2005 when the defendants and their agents attempted to interfere with the plaintiffs peaceful possession and enjoyment of the schedule property which is alleged to have been resisted by the plaintiffs therein. In the said suit the defendants after being notified have entered appearance and filed their written statement and also objection to the application filed by the plaintiffs seeking an order of temporary injunction. Defendants 2 to 14 in the said suit are revision petitions herein.
3. After filing of the suit, the very same plaintiffs namely respondents No. 1 to 5 herein instituted one more suit in O.S. No. 2290/2005 on 21.03.2005. Revision Petitioners herein had been arrayed as defendants 5 & 6, and 8 to 18. It was stated in the said suit that the cause of action for filing the suit arose on 18.11.2004 and subsequent thereafter the defendants No. 5 to 18 filed suit in O.S. No. 8896/2004 on the file of the City Civil Judge, Bangalore and also filed a suit in O.S. No. 6771/2004 against Sri. Srinivas Reddy and Sri. Raghavendra Swamy. It was also stated in the O.S. No. 2290/2005 that attempts to dispossess them by the defendants were made on 12.03.2005 and 13.03.2005 which was also the reason/cause of action for filing the said suit OS 2290/2005. The said suit also came to be resisted by the defendants therein by filing their written statement and it is at the stage of final arguments to be addressed by the respective defendants.
4. During the pendency of O.S. No. 304/2005 referred to supra an interlocutory application under Section 151 of Civil Procedure Code came to be filed by the defendants No. 2 to 14 in the said suit i.e., the revision petitioners herein on the ground that the plaintiffs cannot pursue two parallel remedies in respect of the same matter at the same time. The said application was supported by the affidavit of the 11th defendant. The said application came to be resisted by the plaintiffs i.e., respondents No. 1 to 5 herein and it was contended that cause of action for both suits being different 2 suits can be proceeded simultaneously. On considering the said application, Court below by its order dated 12.03.2010 dismissed the application namely I.A. No. 8 filed by the defendants No. 2 to 14. It is this order which is now sought for being revised in this Revision Petition by defendants No. 2 to 14 in the present revision petition.
5. I have heard Sri. S. Sudindranath, learned Counsel appearing for the petitioners and Sri. V.B. Shivakumar, learned Counsel appearing for the respondents No. 1 to 5.
6. Sri. Sudindranath, learned Counsel would contend that suit O.S. No. 2299/2005 filed on 21.03.2005 for a larger relief namely for relief of declaration and perpetual injunction is pending in respect of the very same property and between the very same parties and hence earlier suit namely O.S. No. 304/2005 for bare injunction would not survive for consideration and he would contend that Court below having observed this fact, i.e., two suits were pending for the same relief between the same parties, ought to have dismissed the suit OS 304/2005 as not surviving for consideration or having become infructuous. He would further contend in both the suits the alleged date of lawful possession of the plaintiffs is stated as 08.11.2004 and hence the plaintiffs in O.S. No. 304/2005 who were also plaintiffs in O.S. No. 2290/2005 cannot create illusion of different cause of action by contending alleged subsequent interference. He would also submit that subsequent to the filing of the suit for perpetual injunction if serious doubt is raised over the plaintiffs title and if the plaintiffs were to file a comprehensive suit, the earlier suit is to be either withdrawn or dismissed and in the instant case the plaintiffs having not withdrawn, the Trial Court ought to have dismissed the suit and allowed I.A. No. 8. Sri. Sudindranth would rely upon the decision of the Hon'ble Supreme Court in the case of Anathula Sudhakar v. P. Buchi Reddy (Dead) by L.Rs and Ors. reported in : AIR 2008 SC 2033 (Para 12).
7. Per Contra Sri. V.B. Shivakumar, learned Counsel appearing for the respondents No. 1 to 5 herein would reiterate the objection statement filed before the Court below and contend cause of action to file 2 suits are different and as such the cause of action being continuing one, the suit in O.S. No. 304/2005 cannot be dismissed on the ground of subsequent suit having been filed for a comprehensive relief.
8. Having heard the learned Counsel for the parties and perused the order of Trial Court, the following points arise for my consideration:
(i) Whether the Court below was justified in dismissing I.A. No. 8 filed by the defendants No. 2 to 14 under Section 151 Code of Civil Procedure?
(ii) What order?
9. The revision petitioners have filed pleadings in respect of both the suits namely O.S. Nos. 304/2005 and 2290/2005. A perusal of the same would disclose that the property involved in both the suits are one and the same namely it is in respect of land bearing Survey No. 110 of Hongasandra Grama, Garvebhavipalya, Begur Hobli, Bangalore South Taluk, measuring 5 acres 23 guntas. The plaintiffs No. 1 to 5 in O.S. No. 304/2005 are also the plaintiffs in O.S. No. 2290/2005. All the defendants in O.S. No. 304/2005 are defendants No. 5 to 18 in O.S. No. 2290/2005. The defendants No. 1 to 14 and the predecessors in title or the vendors of defendants No. 5 to 18 as also the plaintiffs.
10. O.S. No. 304/2005 came to be filed on 11.01.2005 contending that cause of action for the said suit for injunction arose on 08.01.2005 when the defendants attempted to interfere with plaintiffs peaceful possession and enjoyment. On appearance of defendants in the said suit and after filing of the written statement title of the plaintiffs having been denied therein had perforced the plaintiffs to file a suit for comprehensive relief namely O.S. No. 2290/2005, wherein it is specifically contended that on 12.03.2005 and 13.03.2005 defendants made attempts to dispossess the plaintiffs by undertaking construction on the suit schedule property Though the cause of action have arisen on 11.02.2005 according to the plaintiffs and even as per their own admission it is either merged in cause of action on 12.03.2005 or got extinguished by virtue of subsequent cause of action on 12.03.2005 and 13.03.2005. Thus, contention of the learned Counsel for the petitioners is required to be accepted to hold that the earlier suit for perpetual injunction if allowed to be pursued would amount two parallel proceedings being continued in respect of the same property between the same parties that too on same cause of action. The Hon'ble Supreme Court in the case of Anathula Sudhakar referred to supra has held to the following effect:
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiffs title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent tittle, merely denies the plaintiffs title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiffs title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
11. On analysing the principles enunciated in the said case to the facts of the present case, this Court is of the considered opinion that the suit in O.S. No. 304/2005 if allowed to be pursued by the plaintiffs when their suit for comprehensive relief namely O.S. No. 2290/2005 is pending in the very same Court would result in two parallel proceedings being pursued by the same parties in respect of the same property on same lines and it would not serve any purpose and accordingly the Court below was not justified in dismissing I.A. No. 8 filed by the defendants No. 2 to 14 in the suit. In view of the above discussion, this Court is of the opinion that I.A. No. 8 deserves to be allowed and suit in O.S. No. 304/2005 is liable to be dismissed.
In view of the above, the following order is passed: