Sunday 14 November 2021

Whether court can suo moto stay subsequent suit as per S 10 of CPC?

 So far as the contention of learned counsel for the

petitioner that the learned Trial Court failed to consider that

under Section 10 of the C.P.C. for stay of suit, the application is

required to be filed in the same suit and in the instant case,

the application was filed in other suit while the trial Court has

directed for stay of petitioner's suit, therefore, the Court below

erred in exercising the powers under Section 10 of the C.P.C, is

concerned, in Munnilal Vs. Sarvajeet AIR 1994 Rajasthan

22, it has been held that the Court can suo motu the stay the

second suit under Section 10 of the C.P.C. So it is clear that to

exercise of power under Section 10 of the C.P.C., an application

is not required.{Para 18}

Law laid down : To exercise of power under Section10 of the C.P.C., an application is not required to be filed.

THE HIGH COURT OF MADHYA PRADESH

Misc. Petition No. : 600 of 2019

 Smt. Pooja Soni  Vs  Dinesh Kumar 

Bench : Hon'ble Shri Justice Rajendra Kumar (Verma)

Dated: 12 /11/2021

Regard being had to the similitude of the facts and

controversy in question, this petition is heard analogously

along with M.P.No.601/2021 and a common order is being

passed which covers the fate of both the petitions as referred

above. For conveniences sake, facts of the case narrated in

M.P.No.600/2021 are taken into consideration.

2. By the instant petition, the petitioner has called in

question the legality and validity of the order dated

28.06.2018, Annexure P/4 passed by the Court of First Civil

Judge Class-I, Nasrullagang, District Sehore, whereby an

application filed under Section 10 of the Code of Civil

Procedure by the petitioner/defendant No.3 has been rejected.

3. As per the petitioner/defendant No.3, she is the owner

and in possession of the property consisting of agricultural

land bearing survey Nos.272/1/2/2, 273 & 354/273 situated at

village Cheech, Tahsil Nasrullaganj, District Sehore (hereinafter

referred to as ‘the suit property’) purchased by her out of her

stridhan and as a mark of respect, she got mutated the name

of her husband (respondent No.2/defendant No.1) in the

revenue record. The respondent No.2 borrowed Rs.2.00 lacs

from the respondent No.1/plaintiff for treatment, which he

returned to the respondent No.1. At the time of taking money,

the respondent No.1 kept the Rin-Pustika in respect of suit

property with him, which was supposed to be returned after

getting the money back, but he had not returned the Rin

Pushtika ever after receiving the money back due to malafide

intention.

4. As per the petitioner, under the garb of document of loan

transaction, the respondent No.1 got a sale-deed executed by

the respondent No.2 in his favour on 23.04.2016. The

petitioner, therefore, was constrained to file a suit for

declaration that she is the sole owner of the suit property and

that the sale-deed executed in favour of respondent No.1 by

the respondent No.2 is null and void. She has also prayed for a

decree of permanent injunction. The suit is registered as R.C.S.

No.26-A/2017. The respondent No.1 has also filed a suit for

permanent injunction on the strength of sale deed dated

23.04.2016 executed in his favour by the respondent No.2. The

suit is registered as RCS No.23-A/2017 (new No. RCS No.38-

A/2017). The respondent No.1 had filed the suit on 31st July,

2017, while the petitioner had filed the suit on 02nd August,

2017 i.e. after two days.

5. The petitioner has filed an application under Section 10 of

CPC praying for stay of the suit filed by the respondent No.1 in

the suit filed by the respondent No.1 i.e. RCS No.23-A/2017.

The respondent No.1 opposed the application. The trial Court

vide order dated 28.06.2018, Annexue P/4 disposed of the

application directing stay of the petitioner’s suit (RCS No.26-

A/2017) during the pendency of the suit (RCS No.23-A/2017

new No.RCS 38-A/2017) filed by the respondent No.1.

6. Learned counsel for the petitioner submits that the trial


Court has failed to notice that it is the petitioner’s application,

wherein she has prayed for stay of the respondent’s suit, at

best, the trial Court could have rejected the application. The

trial Court further failed to see that for stay of the petitioner’s

suit, an application ought to have been filed in her suit.

Further, the trial Court failed to appreciate that in petitioner’s

suit, there are as many as six defendants while in the suit filed

by the respondent No.1 there are only three defendants. Thus,

it could not have been held that the parties in both the suit are

same. Learned counsel for the petitioner further submits that

the trial Court failed to properly appreciate the facts of the

case and erroneously stayed the proceedings of the suit filed

by the petitioner. It is also submitted that the trial Court has

failed to consider that under Section 10 of CPC for stay of suit,

an application is required to be filed in the same suit, however,

in the instant case, the application was filed in another suit,

but the trial Court has directed for stay of the petitioner’s suit.

Thus, trial Court erred in exercising the powers under Section

10 of CPC. It is also submitted by the petitioner that trial Court

further should have seen that since both the suits are pending

in the same court, the interest of justice would have been met

by directing consolidation of hearing of both the suits instead

of staying the proceedings of one suit. Hence, the impugned


order passed by the trial Court is illegal and is liable to be set

aside. Learned counsel for the petitioner has relied upon a

judgment passed by the Court in the cases of Kundanmal vs.

Vivekchand, 1961 MPLJ SN 266 and Sukhawatrai vs.

Prem Narain, 1962 MPLJ SN 313.

7. After rejection of the application under Section 10 of CPC

vide order dated 28.06.2018, the petitioner filed another

application under Section 151 of CPC for consolidating hearing

of both the suits. The respondent No.1 opposed the application

by filing a reply to the same stating that subject matter of both

the suits are different. The learned trial Court has rejected the

said application on the ground that the proceedings of the

petitioner’s suit has already been stayed vide order dated

28.06.2018. Learned counsel for the petitioner submits that

the trial Court grossly erred in passing the order staying the

proceedings of the petitioner’s suit, Infact in the fact and

circumstances of the case, both suits ought to have been

consolidated and to be heard together. Because of the stay of

the petitioner’s suit, she is deprived of the relief prayed for by

her. Thus, the impugned order passed by the trial Court dated

17.01.2019 is illegal and is liable to be set aside. He has relied

upon a judgment passed by this Court in the case of

Manakchand Ruthia vs. Rajendra Kumar Agrawal and

another, 2008(2) MPHC 64.

8. Learned counsel for the respondent No.1 submits that the

orders passed by the trial Court are as per the law and there is

no illegality or irregularities in the same. The matter in issue is

identical in both the suits. The suit filed by the respondent

No.1 is earlier and, therefore, the trial Court has rightly stayed

the later suit filed by the petitioner and once the proceedings

of the suit have been stayed, there is no occasion to

consolidate both the suits. He has relied upon the judgments of

this Court passed in the cases of Sanjay Goyal vs. Rachna

Goyal, 2010(3) MPJR 246 and Poonamchand vs. Maruti

Madanmohanji and others, 2007(3) MPHT 24.

9. I have heard learned counsel for the parties at length,

perused the records as the orders passed by the trial Court.

10. Section 10 of the Code of Civil Procedure reads as under:

“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].

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.”


11. As per this Section, 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, then the subsequent suit can be stayed by the

trial Court.

12. In the present case, the petitioner had subsequently filed

a suit against the respondent No.1 to declare the registered

sale-deed dated 23.04.2016 as null and void and permanent

injunction and to restrain dispossession of her and not to

alienate the suit property. The respondent No.1 had also filed a

suit, initially against the respondent Nos. 2 & 3 for permanent

injunction and later on the petitioner has been impleaded as

defendant No.3, on the basis of the sale-deed executed by the

respondent No.2 in favour of the respondent No.1 dated

23.04.2016. Copy of the plaints filed by the petitioner and the

respondent No.1 respectively in RCS No.26-A/2017 and 23-

A/2017 (new 38-A/2017) are Annexure P/1 and P/2.

13. After perusing the plaints filed by the parties, it is clear

that issues in both the suit are not the same, although some

parties and suit property in both the suits are same, however,

in previously instituted suit, the respondent No.1 has claimed

a relief of permanent injunction and in the subsequent suit, the

petitioner seeks a relief of declaration and permanent

injunction. Thus, the reliefs claimed in both the suits are

different.

14. In cases of Kesrimal Vs. Laxmi Narayan 1956 Madh

BLJ 1134 and Radheshaym Vs. Kashi Nath, AIR 1960 MP

169, this Court has held that for the applicability of Section 10

of the C.P.C. there must be complete identity of the entire two

suits. In Ram Heth Vs. State of U.P. AIR 1979 Allahabad

114( Full Bench), it was held by the Full Bench that for the

applicability of Section 10 all the issues arising in the two suits

must be the same. Main issue or some issues in both the suits

substantially are not sufficient to hold that Section 10 of the

C.P.C. applies.

15. In the judgment reported in National Institute Of

Mental vs C. Parameshwara AIR 2005 SC 242 the scope

of Section 10 of the C.P.C. has been dealt with by the Hon'ble

Supreme Court which reads as follows:

“The object underlying Section 10 is to prevent Courts

of concurrent jurisdiction from simultaneously trying

two parallel suits in respect of the same matter in

issue. The object underlying Section 10 is to avoid two

parallel trials on the same issue by two Courts and to

avoid recording of conflicting findings on issues, which

are directly and substantially in issue, in previously

instituted suit. The language of section 10 suggests

that, it is referable to a suit instituted in the civil court

and it cannot apply to proceedings of other nature

instituted under any other statute. The object of

Section 10 is to prevent Courts of concurrent

jurisdiction from simultaneously trying two parallel

suits between the same parties in respect of the same

matter in issue. The fundamental test to attract

Section 10 is whether on final decision being reached

in the previous suit, such decision would operate as

res judicata in the subsequent suit. Section 10 applies

only in cases where the whole of the subject matter in

both the suit is identical. The key words in Section 10

are " the matter in issue is directly and substantially in

issue" in the previously instituted suit. The words

"directly and substantially in issue" are used in contradistinction

to the words "incidentally or collaterally in

issue". Therefore, Section 10 would apply only if there

is identity of the matter in issue in both the suits,

meaning thereby, that the whole of subject matter in

both the proceedings is identical".

16. It is settled law that for the applicability of Section 10 the

test is whether on a final decision being reached in the

previously instituted suit, such decision would operate as resjudicata

in the subsequently instituted suit as observed by the

Privy Council in Annamalay Chetty Vs. B.A. Thornhill, AIR

1931 PC 263, if the decision in one suit would have the effect

of being res-judicata in respect of the issues arising in the

subsequently instituted suit, then it would not be proper to

proceed with the trial on the vary same issues in a

subsequently instituted suit.

17. In the present case, in subsequently instituted suit, the

plaintiff seeks declaration that the sale deed dated 23.4.2016

executed in favour of defendant No.1 is null and void and the

plaintiff is the sole owner in possession of suit property.

Plaintiff has also prayed of decree for permanent injunction

against the defendants. In previously instituted suit filed by

respondent No.1, the plaintiff has claimed only permanent

injunction so final decision in previously instituted suit would

not operate as res judicata in the subsequent suit.

18. So far as the contention of learned counsel for the

petitioner that the learned Trial Court failed to consider that

under Section 10 of the C.P.C. for stay of suit, the application is

required to be filed in the same suit and in the instant case,

the application was filed in other suit while the trial Court has

directed for stay of petitioner's suit, therefore, the Court below

erred in exercising the powers under Section 10 of the C.P.C, is

concerned, in Munnilal Vs. Sarvajeet AIR 1994 Rajasthan

22, it has been held that the Court can suo motu the stay the

second suit under Section 10 of the C.P.C. So it is clear that to

exercise of power under Section 10 of the C.P.C., an application

is not required.

19. Now the question is that whether both the suits should be

consolidated?

20. The Code of Civil Procedure does not specifically provide

for consolidation of suits. Consolidation of suits in exercise of

powers with or without consent of the parties is a phenomenon

well established and in various High Courts of the country

before whom question of consolidation have chosen to

consolidation under inherent jurisdiction of the Court. [See

Narayan V. Jankibai AIR 1915 Bom 1 Nankoo vs Nagnur

AIR 1953 Hyd 130(DB), Philip Vs. Bata Shoe Co. 1959

Ker Lt 1346, Kali Charan Dutt Vs. Surja Kumar Mandal

17 Cal Wn 526].

21. The object behind consolidation of suits is to avoid

multiplicity of suits or proceedings, chances of conflicting

decisions on the same point, to prevent delay and to avoid

unnecessary expenses. [See Bharat Nidhi Ltd Delhi Vs.

Shital Pra AIR 1981 Del 251].

22. It has been held by the Apex Court in the case of Prem

Lala Nahata and Anr vs. Chandi Prasad Sikaria; (2007) 2

SCC 551 that :

“it cannot be disputed that the court has power to

consolidate suits in appropriate cases. Consolidation is

a process by which two or more causes or matters are

by order of the Court combined or united and treated

as one cause or matter. The main purpose of

consolidation is therefore to save costs, time and

effort and to make the conduct of several actions

more convenient by treating them as one action. The

jurisdiction to consolidate arises where there are two

or more matters or causes pending in the court and it

appears to the court that some common question of

law or fact arises in both or all the suits or that the


rights to relief claimed in the suits are in respect of or

arise out of the same transaction or series of

transactions; or that for some other reason it is

desirable to make an order consolidating the suits.

(See Halsbury's Laws of England, Volume 37,

paragraph 69). If there is power in the court to

consolidate different suits on the basis that it should

be desirable to make an order consolidating them or

on the basis that some common questions of law or

fact arise for decision in them, it cannot certainly be

postulated that the trying of a suit defective for

misjoinder of parties or causes of action is something

that is barred by law. The power to consolidate

recognised in the court obviously gives rise to the

position that mere misjoinder of parties or causes of

action is not something that creates an obstruction

even at the threshold for the entertaining of the suit”.

23. The object of consolidation of suits is to avoid multiplicity

of proceedings and unnecessary delay and protraction of

litigation. These objects are not in any way in conflict with the

objects of Section 10. On the contrary, consolidation of suits

promotes such objects. Hence, a court has inherent power to

consolidate suits between the same parties in which the

matter in issue in both the suits substantially the same.

Section 10 was never intended to take away the inherent

power of the Court to consolidate for the interests of justice.

The Court may, however, refuse to consolidate suits if it would

be against public policy and encourage multiplicity of

proceedings. [See Indian Bank Vs. Maharshtra State Co-


operative Marketing Fedration 1998 5 SCC 69, Desh

Bhushan Vs. Mahajan 1997 AIHC 2530 and Anand Deep

Vs. Ranjeet Kaur AIR 1992 DL 87].

24. In the present case, suit property and most of the parties

are the same in both suits, matter in issue is also same to

some extent, so to avoid multiplicity of proceedings and

unnecessary delay and protraction of litigation, consolidation

of both suits would be in the interest of justice.

25. In the result, impugned order dated 28.6.2018 passed by

Additional Judge to the Court of First Civil Judge, Class-I Sehore

in R.C.S. No.38-A/2017 and order dated 17.1.2019 passed by

Additional Judge to the Court of First Civil Judge, Class-I Sehore

in R.C.S. No.27-A/2017 (New RCS No.38-1/17) are hereby set

aside and learned trial Court is directed to consolidate both the

suits, try and decide the same in accordance with law.

26. The petitions stand allowed and disposed of. No order as

to costs.

(Rajendra Kumar (Verma))


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