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2025 DAILYLAW 3469 (HP)

Rajinder Kumar v. Madhu Vats

2025-09-19

Ajay Mohan Goel

body2025
JUDGMENT : Ajay Mohan Goel, J. By way of this petition filed under Article 227 of the Constitution of India, the petitioner has assailed the order passed by the learned Trial Court dated 05.01.2023, in terms whereof, an application filed by the petitioner under Section 10 of the Civil Procedure Code, by the respondent-defendant, has been allowed. 2. Brief facts necessary for the adjudication of the present petition are that the petitioner herein filed a civil suit bearing No. 298 of 2022 for the grant of decree of declaration to the effect that the plaintiff and defendant were joint owners of land comprised in Khata No. 265, Khatauni No. 393, Khasra No. 1845/683, 1851/685, 1855/686, land measuring 00-00-53 hects., situated at Mohal Aima, Hadbast. No. 212, Tehsil Palampur, District Kangra, H.P. This suit was filed in the month of December, 2022, however, before this suit, the petitioner had earlier also filed a suit i.e. Civil Suit No. 168/2021, titled as Rajinder Kumar vs. Madhu Vats and others, in which the following relief was prayed:- “It is therefore humbly prayed that the suit of the plaintiff, as prayed for, in the heading of this plaint, may kindly be decreed with costs in favour of the plaintiff and against the defendants in the ends of justice.” 3. In the subsequent suit, i.e. civil suit No. 298 of 2022, the defendant filed an application under Section 10 of the Civil Procedure Code, praying for stay of the suit on the ground of res sub judice. 4. Learned Trial Court has allowed this application in terms of the impugned order by returning the following findings:- “6. I have heard the respected members at bar and have also gone through the record with utmost care. 7. 4. Learned Trial Court has allowed this application in terms of the impugned order by returning the following findings:- “6. I have heard the respected members at bar and have also gone through the record with utmost care. 7. So far as application in hand is concerned, it is an admitted fact on record that the plaintiff has filed the present suit seeking decree for declaration to the effect that the plaintiff and defendants are joint owners in possession over the suit land and the suit land has not yet been partitioned by metes and bounds, but on the basis of one procured decree/judgment dated 06.04.2021 in CS No.61/21 dated 17.03.2012, titled as Varinder Kumar versus Pardeep Kumar and others whereby the said suit was got conclusively decided in favour of defendants No.1 to 3 in connivance with defendants No.4 to 6 and the present plaintiff was never arrayed in the list of defendants of proforma defendant and defendants No. 1 to 3 managed the interest of plaintiff and other necessary co-sharers i.e. defendants No.7 to 9, hence the said decree/judgment be declared null and void which is the result of fraud, mis-representation and conclusiveness and illegal and not binding upon the plaintiff with consequential relief of permanent prohibitory injunction restraining the defendant from changing the nature of suit land or to enforce the judgment and decree on the basis of alleged procured judgment and decree. 8. In this suit, alongwith written statement, present application has been filed seeking stay of the present suit on the ground that the plaintiff has already filed Civil suit No.168/21 titled as Rajinder Kuma versus Madhu Vats and others against descendants No.1 to 3 which is pending in the court wherein the plaintiff has prayed for the relief of permanent prohibitory injunction restraining the defendants from causing interference, cutting and uprooting the hedge (barbed wire) digging any part of the land, constructing any path and changing the nature of land by way of raising permanent structure or in the alternative decree for mandatory injunction directing the defendants to restore the suit land in its original condition if the defendants succeed in changing the nature of pucca path in the suit land during pendency of suit. 9. Perusal of copy of plaint in CS No. 168/21 shows that the same was filed by Rajinder Kumar against Madhu Vats, Narayni Shami and Binni Vats. 9. Perusal of copy of plaint in CS No. 168/21 shows that the same was filed by Rajinder Kumar against Madhu Vats, Narayni Shami and Binni Vats. Perusal of present plaint shows that the present suit has been filed by same plaintiff against same defendants Madhu Vats, Nayani Sham, Binny Vats alongwith other persons namely Pardeep Kumar. Surinder Kumar, Narinder Kumar, Godawari, Abhishek and Aseem. 10. So far as contention of the plaintiff regarding filing of present application before framing of issues on both civil suits is concerned, Hon'ble High Court of H.P. in Suresh. Varma and Another versus Kamlesh Kumar and Others 2019 Latest HLJ (HP)-1564 in para 4(iii) to 6 has held as under :- "parties as well as the matter in controversy in both the civil suits is directly and substantially the same. Only issues were framed. Evidence has not been led. It cannot be said that all issues have been tried. Issue of triability of all the issues becomes important while considering the applicability of section 10 of Civil Procedure Code. Section 10 of the Civil Procedure Code is a Substantive provision and determining its applicability to a subsequently instituted suit cannot be held hostage to full fledge trial on all issues including the issue of applicability of section 10 of the Civil Procedure Code, merely Con the ground that issue of stay of suit, in view of section 10 of Civil Procedure Code has not been formally treated as a preliminary issue, in a case where issues have not been tried and led. Preliminary instituted suit had been made in the written submissions in respect to stay of subsequently statement. Issue in this regard was also framed. Before the trial began, defendants (petitioners) moved a separate application invoking section 10 CPC for staying the subsequent suit. By invoking section 10 CPC, subsequent suit does not get disposed of on any preliminary issue, only its trial is stayed. Therefore, issue of applicability of section 10 of CPC stands on a different footing altogether. Trial court has not considered above aspects in the impugned order. Trial court fell in error in rejecting the application moved by the petitioners under section 10 CPC. In view of facts and circumstances of the case and in the interest of justice, both the civil suits to be tried together." 11. Trial court has not considered above aspects in the impugned order. Trial court fell in error in rejecting the application moved by the petitioners under section 10 CPC. In view of facts and circumstances of the case and in the interest of justice, both the civil suits to be tried together." 11. Therefore, keeping in view the ratio of law discussed supra, issue on applicability of Section 10 of CPC stands on different footing altogether. 12. So far as application in hand is concerned, object of section 10 of CPC is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, to avoid two parallel trials on the same issue by courts and to avoid recording conflicting findings on issues which are directly and substantially in issue in previously instituted suit. (See AIR 2005 SC 242 ). 13. The four essential conditions for the application of section 10 CPC are (i) that the matter in issue in the second suit is also directly and substantially is issue in the first suit (ii) that the parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title (iii) that the court in which first suit is instituted is competent to grant the relief claimed in the subsequent suit and (iv) that the previous instituted suit is pending. If above conditions fulfill, the court in which a subsequent suit is instituted, is prohibited from proceeding with its trial in certain specified circumstances Where the scope of enquiry in the two proceedings is different, subsequent proceeding cannot be stayed. The test regarding the applicability of section 10 of CPC to the present suit is whether the final decision in the previous suit would operate as res-judicata in the subsequent suit. The subject matter and the causes of action need not to be the same. (See AIR 1992 P&H 217, 219). 14. Unless the decision of the suit operates as res-judicata in the other suit, it cannot be said that the matter in issue is directly and substantially the same in both the suits. Section 10 of CPC apples where the decision in the previous suit will definitely affect the decision in the later suit. 15. 14. Unless the decision of the suit operates as res-judicata in the other suit, it cannot be said that the matter in issue is directly and substantially the same in both the suits. Section 10 of CPC apples where the decision in the previous suit will definitely affect the decision in the later suit. 15. Keeping in view the ratio of law discussed above and keeping into consideration the rival contentions of red both the parties as well as from the pleadings in both suit, this court comes to the conclusion that the suit land and subject matter in both the civil suits is directly and substantially the same. Cause of action in both the civil suits are also the same and both the civil suits are pending between the same parties or under whom they or any of them claim litigating. It is also not disputed that the decision in previously instituted suit would definitely operate as res-judicata in the present suit. Hence, keeping in view the discussion made supra, present application deserves to be allowed and the same is allowed and the present suit is hereby stayed till disposal of the previously Instituted suit bearing No. 168/21 titled as Rajinder versus Madhu Vats and others and be tagged with Civil Suit No.168/21 and will be taken up after disposal of said civil suit.” 5. Learned Counsel for the petitioner argued that the impugned order is not sustainable in the eyes of law because learned Trial Court erred in not appreciating that there was nothing common in the two suits filed by the petitioner. He submitted that whereas the first suit was simplicitor for injunction, the subsequent suit was for declaration. He submitted that this extremely important aspect of the matter was ignored by the learned Trial Court, therefore, the order under challenge is bad. Learned Counsel further submitted that one more perversity with the impugned order was that proforma defendants were not heard before passing of the impugned order. 6. On the other hand, learned Counsel for the respondent submitted that the order passed by learned Trial Court suffers from no perversity in light of the fact that as the subsequent suit was hit by the provisions of Section 10 of the Civil Procedure Code, the same was rightly stayed by the learned Trial Court. 6. On the other hand, learned Counsel for the respondent submitted that the order passed by learned Trial Court suffers from no perversity in light of the fact that as the subsequent suit was hit by the provisions of Section 10 of the Civil Procedure Code, the same was rightly stayed by the learned Trial Court. He further submitted that in fact as the suit land was common, parties were common and the cause was also common, as in both the cases, the petitioner was referring to the judgment passed by the competent Court, i.e. in Civil Suit No. 61/2012, decided on 06.04.2021, learned Trial Court rightly stayed the subsequent suit. 7. I have heard learned Counsel for the parties and have also carefully gone through the impugned order as well as other documents on record. 8. Before dealing with the matter further, this Court would like to refer to the provisions of Section 10 of the Civil Procedure Code. This Section 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.” 9. Thus, in terms of the provisions of Section 10, there is a bar that no Court shall proceed with the trial of a suit, in which the matter in issue is 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. 10. 10. In the present case, the initial suit, i.e. civil suit No. 168 of 2021, titleds Rajinder Kumar vs Madhu Vats and others, filed by the petitioner was for the grant of a decree of permanent injunction qua the suit land comprised in Khata No. 265, Khatauni No. 393, Khasra No. 1845/683, 1851/685, 1855/686, land measuring 00-00-53 hects., situated at Mohal Aima, Hadbast. No. 212, Tehsil Palampur, District Kangra, H.P.as per jamabandi for the year 2012-13 and it is also prayed therein that the defendant be restrained from taking undue advantage of the judgment/decree passed by learned Trial Court in civil suit No. 61/2012, decided on 06.04.2021. Certain other reliefs have also been prayed. 11. Now coming to the subsequent suit filed by the petitioner, the same was for grant of decree of declaration that the plaintiff and defendant are joint owners of the land comprised in Khata No. 294, Khatauni No. 393, Khasra No. 1845/683, 1851/685, 1855/686 and land measuring 00-00-03 hects., situated at Mohal Aima, Tehsil Palampur, District Kangra, H.P. as per jamabandi for the year 2017-18 as the suit land was never partitioned by metes and bounds but was partitioned on the basis of one procured decree/judgment dated 06.04.2021, passed in civil suit No. 61/2012, wherein the said suit was got collusively decided in favour of defendants No. 1 to 3 in connivance with defendants No. 4 to 6 and the plaintiff was never arrayed in the list of defendants or proforma defendants as party. 12. Now what is apparent and evident from reading of both the plaints is that the suit land is common, parties are common and cause is also common, i.e., in both the suits, the basic grievance of the petitioner arises out of the judgment passed in civil suit No.61/2012, decided on 06.04.2021. Whereas in the first suit, the petitioner wants the Court to injunct the defendants from taking advantage of this judgment, in the subsequent suit, he wants the Court to declare that said judgment is a procured judgment. In the light of the fact that the issue of the judgment is there in the initial suit also, effect thereof will have to be decided by the learned Trial Court in the first suit also. In the light of the fact that the issue of the judgment is there in the initial suit also, effect thereof will have to be decided by the learned Trial Court in the first suit also. In these circumstances, obviously, as the second suit was hit by Section 10 of the Civil Procedure Code, the learned Trial Court rightly stayed the subsequent civil suit. In fact, why in the first civil suit itself no declaration was sought by the plaintiff with regard to the legality of the judgment in issue when this cause was available to the plaintiff even at the time of filing of the first suit, could not be explained. 13. Be that as it may, the Court is not making any observation on this issue of the matter. Suffice to say that as learned Trial Court has rightly allowed the application filed under Section 10 of the Code of Civil Procedure and as the reasoning given therein is supported by the record, the same does not call for any interference. 14. Before parting, this Court would like to make an observation that as far as the contention of the petitioner that none of the proforma defendants were heard us concerned, the same has no merit because it is the petitioner who is before the Court and it is not the case of the petitioner that the petitioner was not heard before the impugned order was passed. In the light of above discussion, as this Court does not find any perversity or illegality in the impugned order, this petition being devoid of merit is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly.