Poonamchand Vs. Murti Madanmohanji and ors. - Court Judgment

Excerpt:
property - stay - section 10 of code of civil procedure,1908 - petitioner purchased suit property under registered sale deed - on application submitted by x suit property was declared as government property - petitioner challenged the same by filing of suit in which permanent injunction also sought against government - suit decreed and permanent injunction also granted in petitioner's favour - on appeal, lower appellate court affirmed the order of trial court - second appeal filed - during pendency of second appeal, another civil suit filed by 'm' through collector for declaration suit property as public property - hence, present application filed by petitioner under section 10 of cpc for stay of suit filed by 'm' till final disposal of second appeal - held, established that main controversy in both suits related to title of suit property - further, jurisdiction, subject-matter and parties to the litigation also same - in such condition, application under section 10 of cpc ought to have been allowed - in result, application allowed and lower court was directed to stay the proceedings of subsequent suit till final disposal of second appeal - indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - permanent injunction was also sought against the state of madhya pradesh as well as manager court of wards to the effect that the mutation in favour of state of madhya pradesh in the record of municipal corporation, ratlam may be deleted. 8. provisions of sections 10 and 11 of the code of civil procedure are quite interwoven and for deciding an application under section 10 of the code of civil procedure, aid may well be taken from the provision contained in section 11 of the 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, 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). for applying section 10 of the code of civil procedure, there needs to be common identity about the subject-matter, parties to the litigation and jurisdiction and the present petition is to be examined on these parameters. 143-a/98) contained in annexure p-6, the plaintiff/petitioner clearly averred that the respondent no. in paragraph 1 of the written statement submitted by the state of madhya pradesh and manager court of wards (tehsildar), ratlam, it was clearly averred that the suit property is known as temple madanmohan ji and the same is owned and possessed by the state of madhya pradesh. 1 to 3 have clearly averred in paragraph 1 of the plaint (annexure p-12) that the temple madanmohan ji is a government property. air 1972 calcutta 128, it has been clearly held that it is enough that there is a substantial identity for application under section 10 of the code of civil procedure. the law commission in its report recommended to remove the anomaly and bring within its fold the conclusiveness of an issue in a former suit decided by any court, be it either of limited pecuniary jurisdiction or of special jurisdiction, like insolvency court, probate court, land acquisition court, rent controller, revenue tribunal etc. rai bahadur rao raja seth air1962sc527 has clearly held that the provision of section 10 of the code of civil procedure is mandatory.orderabhay m. naik, j.1. petition has been preferred against the order dated 30-11-2006 (annexure p-1) rejecting thereby an application dated 11-12-2003 submitted under section 10 of the code of civil procedure.2. short facts leading to the petition are that the petitioner purchased the suit property vide registered sale deed dated 7-4-1978 from one sohanlal pujari for a consideration of rs. 40,000/-, manager court of wards (tehsildar) ratlam, on an application submitted before him by sanatan dharm sabha, ratlam, declared it as a government property. petitioner challenged it by instituting civil suit no. 143-a/98. he prayed for declaration of title in his favour. permanent injunction was also sought against the state of madhya pradesh as well as manager court of wards to the effect that the mutation in favour of state of madhya pradesh in the record of municipal corporation, ratlam may be deleted. copy of the plaint is on record as annexure p-6. the suit was contested by the then defendants by submitting a written statement and issues were raised therein by the court of additional judge to the court of first civil judge class-i, ratlam. issue no. 1 (a) pertained to the title and possession of the plaintiff whereas, issue no. 1 (b) pertained to the ownership of the state government over the suit property. the suit was decreed on 12-9-2003 in favour of the plaintiff/petitioner vide judgment and decree contained in annexure p-9 and the title of the plaintiff/petitioner with respect to the suit property was declared. simultaneously, the order of the collector ratlam dated 14-1-1997 was declared void and ineffective. a decree for permanent injunction was also granted restraining the defendants therein from causing interference into the plaintiff rights and possession over the suit property. judgment and decree of the trial court was confirmed by the lower appellate court vide annexure p-10. second appeal no. 1420/05 against the aforesaid has been admitted by this court and the same is pending for adjudication as revealed in annexure p-11.3. another civil suit bearing c.s. no. 8-a/2003 has been instituted by (i) murti madanmohan ji (shri krishna bhagwan) through collector, ratlam, (ii) state of madhya pradesh through collector, ratlam, and (iii) tehsildar and manager court of wards, ratlam, against the defendant/petitioner and certain other persons occupying the suit property as tenants, with a prayer that it be declared that the suit property is under the management of the plaintiffs and is a public property and the petitioner herein may be restrained from instituting suits for eviction against the tenants of the temple and from evicting them. copy of the subsequent plaint is on record as annexure p-12. petitioner submitted his written statement vide annexure p-13 refuting the allegations contained in the plaint. court of second additional district judge, ratlam, who is trying the subsequent suit, raised various issues including issue that whether the suit property is government property.4. the defendant/petitioner on 11-12-2006 submitted an application under section 10 of the code of civil procedure that proceedings in the subsequent suit (i.e., c.s. no. 8- a/2003) pending in the court of second additional district judge, ratlam, may be stayed until decision of second appeal no. 1420/2005. the application was opposed by the plaintiff/respondent nos. 1 to 3. learned trial judge vide impugned order dismissed the application under section 10 of the code of civil procedure on the ground that the judgment and decree passed in the earlier suit was rendered by the court of civil judge, whereas, the present suit is pending in the court of additional district judge. thus, the jurisdiction of both the courts is not common. learned trial judge has further observed that murti madanmohan ji (i.e., impleaded in the current suit) is an independent juristic person therefore, parties to both the suits are not common.5. shri pavecha, learned senior advocate, contended that the ingredients of section 10 of the code of civil procedure are available and the provision being mandatory in nature, the proceedings of the subsequent suit are liable to be stayed.6. shri sanjay joshi, learned govt. advocate, supported the impugned order.7. i have heard the submissions at length and considered the same in the light of the material available on record.8. provisions of sections 10 and 11 of the code of civil procedure are quite interwoven and for deciding an application under section 10 of the code of civil procedure, aid may well be taken from the provision contained in section 11 of the code of civil procedure. section 10 of the code of civil procedure is reproducedbelow:10. 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). for applying section 10 of the code of civil procedure, there needs to be common identity about the subject-matter, parties to the litigation and jurisdiction and the present petition is to be examined on these parameters.9. in the earlier plaint (i.e., c.s. no. 143-a/98) contained in annexure p-6, the plaintiff/petitioner clearly averred that the respondent no. 2 treated the suit property as temple madanmohan ji and further treated it to be a government property. in paragraph 1 of the written statement submitted by the state of madhya pradesh and manager court of wards (tehsildar), ratlam, it was clearly averred that the suit property is known as temple madanmohan ji and the same is owned and possessed by the state of madhya pradesh. thus, it was not the case of the respondent nos. 1 to 3 that the suit property was ever owned by the deity murti madanmohan ji. on the contrary, it was a categorical stand of the respondent nos. 1 and 2 that the suit property was a government property.10. in the current suit, the plaintiff/respondent nos. 1 to 3 have clearly averred in paragraph 1 of the plaint (annexure p-12) that the temple madanmohan ji is a government property. the plaint has been instituted by the present plaintiff/respondent nos. 1 to 3 including temple madanmohan ji. thus, though temple madanmohan ji has been impleaded as plaintiff no. 1, but it has not asserted its own title. title as per the current plaint is stated to be with the state government of madhya pradesh. temple madanmohan ji though has been made a co-plaintiff in the current suit, but it has not asserted its own title, rather it is litigating under the title of respondent nos. 2 and 3 who were already impleaded in the earlier suit as defendant nos. 1 and 2.11. as regards other defendants (i.e., except defendant/petitioner), it may be seen that they are not litigating under their independent title. on the contrary, their stay is that they are tenants of the plaintiff/respondent nos. 1 to 3. they are undisputably deriving title from respondent nos. 1 to 3 whose interest was being protected in the earlier suit by the respondent nos. 1 and 2 on account of having been impleaded in the earlier suit as defendant nos. 1 and 2. this being so, it cannot be disputed that the defendant nos. 2 to 13 are litigating under the title of respondent nos. 2 and 3 herein. interest of plaintiff no. 1 and defendant nos. 2 to 13 was, thus, being represented by respondent nos. 2 and 3 herein in the earlier suit. thus, it cannot be said that the parties to both the suits are not substantially common.12. as regards identity of jurisdiction, it may be seen that the earlier suit was decided by the court of civil judge class i, ratlam with less pecuniary jurisdiction, whereas, the subsequent suit (i.e., current suit) is pending with the court of additional district judge having higher pecuniary jurisdiction. now, it is to be seen that whether the judgment and decree rendered in the earlier suit by the court having lesser pecuniary jurisdiction would operate as res judicata in a subsequent suit, pending in the court with higher pecuniary jurisdiction. at this juncture, i may successfully refer to explanation viii of section 11 of the code of civil procedure, which reads as under:explanation viii:-an issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limitation jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. 13. however, predecessor court (i.e., nagpur high court) has held in the case of the laxmi bank ltd., akola and ors. v. harikisan and ors. air 1948 nagpur 297 that 'subject matter of subsequent suit must be covered by the previously instituted suit and not the vice versa. in the present case, admittedly, the subject-matter of subsequent suit in substance was covered in the earlier suit. in order to apply section 10, the subject-matter in dispute in earlier suit and subsequent suit must not identical. in aran general industries ltd. v. rishabh . and ors. air 1972 calcutta 128, it has been clearly held that it is enough that there is a substantial identity for application under section 10 of the code of civil procedure. it is enough if the matters in controversy in the two suits are substantially the same. from the above mentioned facts, it is clear that the main controversy in both the suits is about title of the suit property which has been claimed by the plaintiff/petitioner against the state of madhya pradesh.14. as regards objection with respect to identity of jurisdiction, it may be seen that the hon'ble supreme court in the case of sulochana amma v. narayanan nair : 1994ecr195(sc) has held that 'a decree in a previous suit will not apply as res judicata unless the judge by whom it was made had jurisdiction to try and decide, not that particular suit, but also the subsequent suit itself in which the issue is subsequently raised'. it has been further held that:5. the words 'competent to try such subsequent suit' have been interpreted that it must refer to the pecuniary jurisdiction of the earlier court to try the subsequent suit at the time when the first suit was brought. mere competency to try the issue raised in the subsequent suit is not enough. a decree in a previous suit will not operate as res judicata unless the judge by whom it was made had jurisdiction to try and decide, not that particular suit, but also the subsequent suit itself in which the issue is subsequently raised. this interpretation had consistently been adopted before the introduction of explanation viii. so the earlier decree of the court of a limited pecuniary jurisdiction would not operate as res judicata when the same issue is directly and substantially in issue in a later suit filed in a court of unlimited jurisdiction, vide p.m. kavade v. a.b. bokil : air1971sc2228 . it had, therefore, become necessary to bring in the statute explanation viii. to cull out its scope and ambit, it must be read along with section 11, to find the purpose it seeks to serve. the law commission in its report recommended to remove the anomaly and bring within its fold the conclusiveness of an issue in a former suit decided by any court, be it either of limited pecuniary jurisdiction or of special jurisdiction, like insolvency court, probate court, land acquisition court, rent controller, revenue tribunal etc. no doubt main body of section 11 was not amended, yet the expression 'the court of limited jurisdiction' in explanation viii is wide enough to include a court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto. therefore, section 11 is to be read in combination and harmony with explanation viii. the result that would flow is that an order or any issue which had arisen directly and substantially between the parties or their privies and decided finally by a competent court or tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such court of limited or special jurisdiction was not a competent court to try the subsequent suit. 15. this being so, the judgment and decree passed by the court of civil judge class i vide annexure p-9 would operate as res judicata, although, the pecuniary jurisdiction of the court trying earlier suit was limited one.16. the apex court in the case of manohar lal chopra v. rai bahadur rao raja seth : air1962sc527 has clearly held that the provision of section 10 of the code of civil procedure is mandatory. in view of the aforesaid, since the identity of jurisdiction, subject-matter of the suit and parties to the litigation are substantially same, the application under section 10 of the code of civil procedure ought to have been allowed.17. consequently, this court is of the opinion that the parties to the subsequent suit are litigating under the title which was claimed by the respondent nos. 1 and 2 in the earlier suit. similarly, it is found that there is identity of jurisdiction in view of explanation viii contained in section 11 of the code of civil procedure subject-matter of both the suits is also found to be substantially the same.18. in the result, the petition stands allowed and the impugned order contained in annexure p-l is, hereby, set aside. it is further directed that the proceedings of subsequent suit (i.e., civil suit no. 8-a/03) shall remain stayed till the decision of second appeal no. 1420/2005. no order as to costs.

Judgment:
ORDER

Abhay M. Naik, J.

1. Petition has been preferred against the order dated 30-11-2006 (Annexure P-1) rejecting thereby an application dated 11-12-2003 submitted under Section 10 of the Code of Civil Procedure.

2. Short facts leading to the petition are that the petitioner purchased the suit property vide registered sale deed dated 7-4-1978 from one Sohanlal Pujari for a consideration of Rs. 40,000/-, Manager Court of Wards (Tehsildar) Ratlam, on an application submitted before him by Sanatan Dharm Sabha, Ratlam, declared it as a Government property. Petitioner challenged it by instituting Civil Suit No. 143-A/98. He prayed for declaration of title in his favour. Permanent injunction was also sought against the State of Madhya Pradesh as well as Manager Court of Wards to the effect that the mutation in favour of State of Madhya Pradesh in the record of Municipal Corporation, Ratlam may be deleted. Copy of the plaint is on record as Annexure P-6. The suit was contested by the then defendants by submitting a written statement and issues were raised therein by the Court of Additional Judge to the Court of First Civil Judge Class-I, Ratlam. Issue No. 1 (A) pertained to the title and possession of the plaintiff whereas, issue No. 1 (B) pertained to the ownership of the State Government over the suit property. The suit was decreed on 12-9-2003 in favour of the plaintiff/petitioner vide judgment and decree contained in Annexure P-9 and the title of the plaintiff/petitioner with respect to the suit property was declared. Simultaneously, the order of the Collector Ratlam dated 14-1-1997 was declared void and ineffective. A decree for permanent injunction was also granted restraining the defendants therein from causing interference into the plaintiff rights and possession over the suit property. Judgment and decree of the Trial Court was confirmed by the Lower Appellate Court vide Annexure P-10. Second Appeal No. 1420/05 against the aforesaid has been admitted by this Court and the same is pending for adjudication as revealed in Annexure P-11.

3. Another Civil Suit bearing C.S. No. 8-A/2003 has been instituted by (i) Murti Madanmohan Ji (Shri Krishna Bhagwan) through Collector, Ratlam, (ii) State of Madhya Pradesh through Collector, Ratlam, and (iii) Tehsildar and Manager Court of Wards, Ratlam, against the defendant/petitioner and certain other persons occupying the suit property as tenants, with a prayer that it be declared that the suit property is under the management of the plaintiffs and is a public property and the petitioner herein may be restrained from instituting suits for eviction against the tenants of the temple and from evicting them. Copy of the subsequent plaint is on record as Annexure P-12. Petitioner submitted his written statement vide Annexure P-13 refuting the allegations contained in the plaint. Court of Second Additional District Judge, Ratlam, who is trying the subsequent suit, raised various issues including issue that whether the suit property is Government property.

4. The defendant/petitioner on 11-12-2006 submitted an application under Section 10 of the Code of Civil Procedure that proceedings in the subsequent suit (i.e., C.S. No. 8- A/2003) pending in the Court of Second Additional District Judge, Ratlam, may be stayed until decision of Second Appeal No. 1420/2005. The application was opposed by the plaintiff/respondent Nos. 1 to 3. Learned Trial Judge vide impugned order dismissed the application under Section 10 of the Code of Civil Procedure on the ground that the judgment and decree passed in the earlier suit was rendered by the Court of Civil Judge, whereas, the present suit is pending in the Court of Additional District Judge. Thus, the jurisdiction of both the Courts is not common. Learned Trial Judge has further observed that Murti Madanmohan Ji (i.e., impleaded in the current suit) is an independent juristic person therefore, parties to both the suits are not common.

5. Shri Pavecha, learned Senior Advocate, contended that the ingredients of Section 10 of the Code of Civil Procedure are available and the provision being mandatory in nature, the proceedings of the subsequent suit are liable to be stayed.

6. Shri Sanjay Joshi, learned Govt. Advocate, supported the impugned order.

7. I have heard the submissions at length and considered the same in the light of the material available on record.

8. Provisions of Sections 10 and 11 of the Code of Civil Procedure are quite interwoven and for deciding an application under Section 10 of the Code of Civil Procedure, aid may well be taken from the provision contained in Section 11 of the Code of Civil Procedure. Section 10 of the Code of Civil Procedure is reproducedbelow:

10. 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).

For applying Section 10 of the Code of Civil Procedure, there needs to be common identity about the subject-matter, parties to the litigation and jurisdiction and the present petition is to be examined on these parameters.

9. In the earlier plaint (i.e., C.S. No. 143-A/98) contained in Annexure P-6, the plaintiff/petitioner clearly averred that the respondent No. 2 treated the suit property as temple Madanmohan Ji and further treated it to be a Government property. In Paragraph 1 of the written statement submitted by the State of Madhya Pradesh and Manager Court of Wards (Tehsildar), Ratlam, it was clearly averred that the suit property is known as temple Madanmohan Ji and the same is owned and possessed by the State of Madhya Pradesh. Thus, it was not the case of the respondent Nos. 1 to 3 that the suit property was ever owned by the deity Murti Madanmohan Ji. On the contrary, it was a categorical stand of the respondent Nos. 1 and 2 that the suit property was a Government Property.

10. In the current suit, the plaintiff/respondent Nos. 1 to 3 have clearly averred in Paragraph 1 of the plaint (Annexure P-12) that the temple Madanmohan Ji is a Government property. The plaint has been instituted by the present plaintiff/respondent Nos. 1 to 3 including temple Madanmohan Ji. Thus, though temple Madanmohan Ji has been impleaded as plaintiff No. 1, but it has not asserted its own title. Title as per the current plaint is stated to be with the State Government of Madhya Pradesh. Temple Madanmohan Ji though has been made a co-plaintiff in the current suit, but it has not asserted its own title, rather it is litigating under the title of respondent Nos. 2 and 3 who were already impleaded in the earlier suit as defendant Nos. 1 and 2.

11. As regards other defendants (i.e., Except defendant/petitioner), it may be seen that they are not litigating under their independent title. On the contrary, their stay is that they are tenants of the plaintiff/respondent Nos. 1 to 3. They are undisputably deriving title from respondent Nos. 1 to 3 whose interest was being protected in the earlier suit by the respondent Nos. 1 and 2 on account of having been impleaded in the earlier suit as defendant Nos. 1 and 2. This being so, it cannot be disputed that the defendant Nos. 2 to 13 are litigating under the title of respondent Nos. 2 and 3 herein. Interest of plaintiff No. 1 and defendant Nos. 2 to 13 was, thus, being represented by respondent Nos. 2 and 3 herein in the earlier suit. Thus, it cannot be said that the parties to both the suits are not substantially common.

12. As regards identity of jurisdiction, it may be seen that the earlier suit was decided by the Court of Civil Judge Class I, Ratlam with less pecuniary jurisdiction, whereas, the subsequent suit (i.e., Current Suit) is pending with the Court of Additional District Judge having higher pecuniary jurisdiction. Now, it is to be seen that whether the judgment and decree rendered in the earlier suit by the Court having lesser pecuniary jurisdiction would operate as res judicata in a subsequent suit, pending in the Court with higher pecuniary jurisdiction. At this juncture, I may successfully refer to Explanation VIII of Section 11 of the Code of Civil Procedure, which reads as under:

Explanation VIII:-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limitation jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

13. However, predecessor Court (i.e., Nagpur High Court) has held in the case of The Laxmi Bank Ltd., Akola and Ors. v. Harikisan and Ors. AIR 1948 Nagpur 297 that 'subject matter of subsequent suit must be covered by the previously instituted suit and not the vice versa. In the present case, admittedly, the subject-matter of subsequent suit in substance was covered in the earlier suit. In order to apply Section 10, the subject-matter in dispute in earlier suit and subsequent suit must not identical. In Aran General Industries Ltd. v. Rishabh . and Ors. AIR 1972 Calcutta 128, it has been clearly held that it is enough that there is a substantial identity for application under Section 10 of the Code of Civil Procedure. It is enough if the matters in controversy in the two suits are substantially the same. From the above mentioned facts, it is clear that the main controversy in both the suits is about title of the suit property which has been claimed by the plaintiff/petitioner against the State of Madhya Pradesh.

14. As regards objection with respect to identity of jurisdiction, it may be seen that the Hon'ble Supreme Court in the case of Sulochana Amma v. Narayanan Nair : 1994ECR195(SC) has held that 'a decree in a previous suit will not apply as res judicata unless the Judge by whom it was made had jurisdiction to try and decide, not that particular suit, but also the subsequent suit itself in which the issue is subsequently raised'. It has been further held that:

5. The words 'competent to try such subsequent suit' have been interpreted that it must refer to the pecuniary jurisdiction of the earlier Court to try the subsequent suit at the time when the first suit was brought. Mere competency to try the issue raised in the subsequent suit is not enough. A decree in a previous suit will not operate as res judicata unless the Judge by whom it was made had jurisdiction to try and decide, not that particular suit, but also the subsequent suit itself in which the issue is subsequently raised. This interpretation had consistently been adopted before the introduction of Explanation VIII. So the earlier decree of the Court of a limited pecuniary jurisdiction would not operate as res judicata when the same issue is directly and substantially in issue in a later suit filed in a Court of unlimited jurisdiction, vide P.M. Kavade v. A.B. Bokil : AIR1971SC2228 . It had, therefore, become necessary to bring in the statute Explanation VIII. To cull out its scope and ambit, it must be read along with Section 11, to find the purpose it seeks to serve. The Law Commission in its report recommended to remove the anomaly and bring within its fold the conclusiveness of an issue in a former suit decided by any Court, be it either of limited pecuniary jurisdiction or of special jurisdiction, like Insolvency Court, Probate Court, Land Acquisition Court, Rent Controller, Revenue Tribunal etc. No doubt main body of Section 11 was not amended, yet the expression 'the Court of limited jurisdiction' in Explanation VIII is wide enough to include a Court whose jurisdiction is subject to pecuniary limitation and other cognate expressions analogous thereto. Therefore, Section 11 is to be read in combination and harmony with Explanation VIII. The result that would flow is that an order or any issue which had arisen directly and substantially between the parties or their privies and decided finally by a Competent Court or Tribunal, though of limited or special jurisdiction, which includes pecuniary jurisdiction, will operate as res judicata in a subsequent suit or proceeding, notwithstanding the fact that such Court of limited or special jurisdiction was not a Competent Court to try the subsequent suit.

15. This being so, the judgment and decree passed by the Court of Civil Judge Class I vide Annexure P-9 would operate as res judicata, although, the pecuniary jurisdiction of the Court trying earlier suit was limited one.

16. The Apex Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth : AIR1962SC527 has clearly held that the provision of Section 10 of the Code of Civil Procedure is mandatory. In view of the aforesaid, since the identity of jurisdiction, subject-matter of the suit and parties to the litigation are substantially same, the application under Section 10 of the Code of Civil Procedure ought to have been allowed.

17. Consequently, this Court is of the opinion that the parties to the subsequent suit are litigating under the title which was claimed by the respondent Nos. 1 and 2 in the earlier suit. Similarly, it is found that there is identity of jurisdiction in view of Explanation VIII contained in Section 11 of the Code of Civil Procedure subject-matter of both the suits is also found to be substantially the same.

18. In the result, the petition stands allowed and the impugned order contained in Annexure P-l is, hereby, set aside. It is further directed that the proceedings of subsequent suit (i.e., Civil Suit No. 8-A/03) shall remain stayed till the decision of Second Appeal No. 1420/2005. No order as to costs.