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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