"10. Stay of suit INJUNCTION SUIT -VS- WRIT AROSE OUT OF REVENUE PROCEEDINGS UNDER R.O.R. -NO RES-SUBJUDIS = 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 limit 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." = the question that requires consideration is whether the matter in issue in O.S.No.427 of 2008 can be said to be directly and substantially in issue in the writ petition pending before this Court. As noticed above, O.S.No.427 of 2008 is a suit for mere injunction restraining the defendant/revision petitioner from interfering with the suit schedule property. The cause of action for the said suit arose on 17.01.2004 and 25.01.2004 when the defendant had allegedly attempted to interfere with the suit schedule property and tried to dispossess the petitioner, whereas the validity and legality of the order of validation, dated 31.07.1998 made under Section 5-A of the ROR Act is the subject-matter of W.P.No.29001 of 2008. Thus it is apparent that the matter in issue in O.S.No.427 of 2008 is entirely different from the matter in issue in W.P.No.29001 of 2008. May be that, the schedule property of the suit and the writ petition is common, however the proceedings are founded on different cause of action and the questions for decision in the suit and the writ petition are entirely different. The proceedings in the suit and the writ petition have nothing in common except the property. Hence the suit and the writ petition under no circumstances can be regarded as parallel litigation and there is no possibility of contradictory decisions in respect of the same cause of action. Therefore the proceedings in the suit cannot be held to be barred under Section 10 of CPC.
REPORTED /PUBLISHED IN http://judis.nic.in/judis_andhra/filename=8362
THE HON'BLE Ms. JUSTICE G. ROHINI
CIVIL REVISION PETITION No.490 OF 2011
28/07/2011
Kolan Balwanth Reddy
Reddy Janga Reddy
Counsel for the petitioner : Sri Gaddam Srinivas
Counsel for the respondent :
ORDER:
The Revision petitioner is the defendant in O.S.No.427 of 2008 on the file
of the Court of the Additional Junior Civil Judge-cum-XVII Metropolitan
Magistrate, Rajendranagar, Rangareddy District. The respondent herein/plaintiff
filed the suit for injunction restraining the defendant/revision petitioner
from interfering with his possession and enjoyment of the plaint schedule
property.
The defendant/revision petitioner contested the suit claim and while
evidence is in progress, he filed I.A.No.544 of 2010 under Section 10 of the
Code of Civil Procedure seeking stay of the trial in the suit on the ground that
W.P.No.29001 of 2008 relating to the same subject-matter is pending on the file
of this Court. The Court below dismissed the said application by order dated
20.12.2010 and aggrieved by the same the present Civil Revision Petition is
filed.
I have heard the learned counsel for the petitioner.
The material available on record shows that the suit was initially filed
in the year 2004 in the Court of the Principal Junior Civil Judge. Subsequently
on transfer to the Court of the Additional Junior Civil Judge, Rajendranagar, it
has been re-numbered as O.S.No.427 of 2008. The
defendant/Revision petitioner filed written statement claiming title over the
suit property on the basis of the order dated 31.7.1998 passed by the Mandal
Revenue Officer under Section 5-A of the A.P. Rights in Land and Pattadar Pass
Books Act, 1971 (for short, 'ROR Act'), pursuant to which the defendant's name
was stated to have been incorporated in the revenue records as pattadar.
Against the said order of Mandal Revenue Officer, though the
plaintiff/respondent herein filed an appeal before the Revenue Divisional
Officer, Chevella, the same was dismissed. However the Revision filed by him
before the Joint Collector, R.R. District was allowed by order dated 6.11.2008
and challenging the said order, dated 6.11.2008, the defendant/Revision
petitioner filed W.P.No.29001 of 2008 in which this Court directed that status
quo shall be maintained by both the parties with regard to the possession of
the land in question.
Having regard to the pendency of W.P.No.29001 of 2008, the learned counsel
for the petitioner contends that the suit proceedings cannot be allowed to go on
till the disposal of the writ petition and therefore the Court below ought to
have allowed the petition filed by the defendant under Section 10 of C.P.C. for
stay of proceedings in O.S.No.427 of 2008.
Section 10 of CPC 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 limit 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."
A plain reading of the above provision shows that where the matter in issue in
a suit is directly and substantially in issue in a previously instituted suit
between the same parties, the Court in which the latter suit is filed is
prohibited from proceeding with the trial of that suit. It is apparent that
to attract the prohibition under Section 10 of CPC, the condition precedent is
that the issue involved in both the suits should be directly and substantially
the same.
In the case on hand, it is true that both O.S.No.427 of 2008 and W.P.No.29001 of
2008 are between the same parties and the schedule property is common to both
the proceedings.
It is also not in dispute that O.S.No.427 of 2008 was actually
filed in the year 2004 in the Court of the Principal Junior Civil Judge (West &
South), Rangareddy as O.S.No.82 of 2004 and on transfer to the Court of the
Additional Junior Civil Judge-cum-XVII Metropolitan Magistrate, Rajendranagar,
it is re-numbered as O.S.No.427 of 2008.
Much prior to that,
by order dated 31.07.1998 passed by the Mandal Revenue Officer, Shamshabad
under Section 5-A of the ROR Act the unregistered sale in favour of the
plaintiff was validated and ultimately by virtue of order, dated 6.11.2008
passed by the Revisional authority - Joint Collector, Rangareddy - under Section
9 of the ROR Act, the Mandal Revenue Officer's order dated 31.07.1998 was set
aside. Against the said order, the defendant filed W.P.No.29001 of 2008 which
is admittedly pending on the file of this Court.
Since the proceedings under the ROR Act were initiated prior to the filing of
O.S.No.427 of 2008, the learned counsel for the petitioner vehemently contended
that the proceedings in the suit being the subsequent proceedings, are liable to
be stayed under Section 10 of CPC.
At the outset, it is to be noticed that the proceedings under the ROR Act are
mere statutory proceedings which are under challenge in W.P.No.29001 of 2008.
Even assuming that the contention of the petitioner that the matter in issue in
W.P.No.29001 of 2008 can be treated as the proceedings in a previously
instituted suit is correct, the question that requires consideration is whether
the matter in issue in O.S.No.427 of 2008 can be said to be directly and
substantially in issue in the writ petition pending before this Court.
As noticed above, O.S.No.427 of 2008 is a suit for mere injunction
restraining the defendant/revision petitioner from interfering with the suit
schedule property.
The cause of action for the said suit arose on 17.01.2004
and 25.01.2004 when the defendant had allegedly attempted to interfere with the
suit schedule property and tried to dispossess the petitioner,
whereas the
validity and legality of the order of validation, dated 31.07.1998 made under
Section 5-A of the ROR Act is the subject-matter of W.P.No.29001 of 2008.
Thus it is apparent that the matter in issue in O.S.No.427 of 2008 is entirely
different from the matter in issue in W.P.No.29001 of 2008.
May be that,
the schedule property of the suit and the writ petition is common, however the
proceedings are founded on different cause of action and the questions for
decision in the suit and the writ petition are entirely different.
The
proceedings in the suit and the writ petition have nothing in common except the
property.
Hence the suit and the writ petition under no circumstances can be
regarded as parallel litigation and there is no possibility of contradictory
decisions in respect of the same cause of action. Therefore the proceedings in
the suit cannot be held to be barred under Section 10 of CPC. Since the matter
in issue in O.S.No.427 of 2008 is not at all related to the issues being
considered in W.P.No.29001 of 2008, as rightly held by the Court below Section
10 of CPC has no application. Hence the order under Revision cannot be held to
be erroneous on any ground whatsoever.
Accordingly, the Civil Revision Petition is dismissed. No
costs.
______________
G. ROHINI, J.
Dt. 28.07.2011
THE HON'BLE Ms. JUSTICE G. ROHINI
CIVIL REVISION PETITION No.490 OF 2011
28/07/2011
Kolan Balwanth Reddy
Reddy Janga Reddy
Counsel for the petitioner : Sri Gaddam Srinivas
Counsel for the respondent :
ORDER:
The Revision petitioner is the defendant in O.S.No.427 of 2008 on the file
of the Court of the Additional Junior Civil Judge-cum-XVII Metropolitan
Magistrate, Rajendranagar, Rangareddy District. The respondent herein/plaintiff
filed the suit for injunction restraining the defendant/revision petitioner
from interfering with his possession and enjoyment of the plaint schedule
property.
The defendant/revision petitioner contested the suit claim and while
evidence is in progress, he filed I.A.No.544 of 2010 under Section 10 of the
Code of Civil Procedure seeking stay of the trial in the suit on the ground that
W.P.No.29001 of 2008 relating to the same subject-matter is pending on the file
of this Court. The Court below dismissed the said application by order dated
20.12.2010 and aggrieved by the same the present Civil Revision Petition is
filed.
I have heard the learned counsel for the petitioner.
The material available on record shows that the suit was initially filed
in the year 2004 in the Court of the Principal Junior Civil Judge. Subsequently
on transfer to the Court of the Additional Junior Civil Judge, Rajendranagar, it
has been re-numbered as O.S.No.427 of 2008. The
defendant/Revision petitioner filed written statement claiming title over the
suit property on the basis of the order dated 31.7.1998 passed by the Mandal
Revenue Officer under Section 5-A of the A.P. Rights in Land and Pattadar Pass
Books Act, 1971 (for short, 'ROR Act'), pursuant to which the defendant's name
was stated to have been incorporated in the revenue records as pattadar.
Against the said order of Mandal Revenue Officer, though the
plaintiff/respondent herein filed an appeal before the Revenue Divisional
Officer, Chevella, the same was dismissed. However the Revision filed by him
before the Joint Collector, R.R. District was allowed by order dated 6.11.2008
and challenging the said order, dated 6.11.2008, the defendant/Revision
petitioner filed W.P.No.29001 of 2008 in which this Court directed that status
quo shall be maintained by both the parties with regard to the possession of
the land in question.
Having regard to the pendency of W.P.No.29001 of 2008, the learned counsel
for the petitioner contends that the suit proceedings cannot be allowed to go on
till the disposal of the writ petition and therefore the Court below ought to
have allowed the petition filed by the defendant under Section 10 of C.P.C. for
stay of proceedings in O.S.No.427 of 2008.
Section 10 of CPC 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 limit 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."
A plain reading of the above provision shows that where the matter in issue in
a suit is directly and substantially in issue in a previously instituted suit
between the same parties, the Court in which the latter suit is filed is
prohibited from proceeding with the trial of that suit. It is apparent that
to attract the prohibition under Section 10 of CPC, the condition precedent is
that the issue involved in both the suits should be directly and substantially
the same.
In the case on hand, it is true that both O.S.No.427 of 2008 and W.P.No.29001 of
2008 are between the same parties and the schedule property is common to both
the proceedings.
It is also not in dispute that O.S.No.427 of 2008 was actually
filed in the year 2004 in the Court of the Principal Junior Civil Judge (West &
South), Rangareddy as O.S.No.82 of 2004 and on transfer to the Court of the
Additional Junior Civil Judge-cum-XVII Metropolitan Magistrate, Rajendranagar,
it is re-numbered as O.S.No.427 of 2008.
Much prior to that,
by order dated 31.07.1998 passed by the Mandal Revenue Officer, Shamshabad
under Section 5-A of the ROR Act the unregistered sale in favour of the
plaintiff was validated and ultimately by virtue of order, dated 6.11.2008
passed by the Revisional authority - Joint Collector, Rangareddy - under Section
9 of the ROR Act, the Mandal Revenue Officer's order dated 31.07.1998 was set
aside. Against the said order, the defendant filed W.P.No.29001 of 2008 which
is admittedly pending on the file of this Court.
Since the proceedings under the ROR Act were initiated prior to the filing of
O.S.No.427 of 2008, the learned counsel for the petitioner vehemently contended
that the proceedings in the suit being the subsequent proceedings, are liable to
be stayed under Section 10 of CPC.
At the outset, it is to be noticed that the proceedings under the ROR Act are
mere statutory proceedings which are under challenge in W.P.No.29001 of 2008.
Even assuming that the contention of the petitioner that the matter in issue in
W.P.No.29001 of 2008 can be treated as the proceedings in a previously
instituted suit is correct, the question that requires consideration is whether
the matter in issue in O.S.No.427 of 2008 can be said to be directly and
substantially in issue in the writ petition pending before this Court.
As noticed above, O.S.No.427 of 2008 is a suit for mere injunction
restraining the defendant/revision petitioner from interfering with the suit
schedule property.
The cause of action for the said suit arose on 17.01.2004
and 25.01.2004 when the defendant had allegedly attempted to interfere with the
suit schedule property and tried to dispossess the petitioner,
whereas the
validity and legality of the order of validation, dated 31.07.1998 made under
Section 5-A of the ROR Act is the subject-matter of W.P.No.29001 of 2008.
Thus it is apparent that the matter in issue in O.S.No.427 of 2008 is entirely
different from the matter in issue in W.P.No.29001 of 2008.
May be that,
the schedule property of the suit and the writ petition is common, however the
proceedings are founded on different cause of action and the questions for
decision in the suit and the writ petition are entirely different.
The
proceedings in the suit and the writ petition have nothing in common except the
property.
Hence the suit and the writ petition under no circumstances can be
regarded as parallel litigation and there is no possibility of contradictory
decisions in respect of the same cause of action. Therefore the proceedings in
the suit cannot be held to be barred under Section 10 of CPC. Since the matter
in issue in O.S.No.427 of 2008 is not at all related to the issues being
considered in W.P.No.29001 of 2008, as rightly held by the Court below Section
10 of CPC has no application. Hence the order under Revision cannot be held to
be erroneous on any ground whatsoever.
Accordingly, the Civil Revision Petition is dismissed. No
costs.
______________
G. ROHINI, J.
Dt. 28.07.2011
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