SCA/27464/2007 1/25 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27464 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= FAKRUDDIN GULAMHUSSEIN VORA & 3 - Petitioners Versus MANILAL ISHWARLAL THAKKAR & 1 - Respondents ========================================================= Appearance : MR HORMAZ B SHETHNA for Petitioners. MR AMAR N BHATT for Respondents. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 27/08/2008 CAV JUDGMENT 1. Rule. Mr.Amar Bhatt, learned advocate waives service of notice of Rule on behalf of SCA/27464/2007 2/25 JUDGMENT respondents. 2. By way of this petition under Article 227 of the Constitution of India, the petitioners – original defendants of H.R.P.Suit No.1858 of 2002 have prayed for an appropriate writ, order or direction, quashing and setting aside the impugned order dated 9.7.2007 passed by the learned Small Causes Court No.12, Ahmedabad below Exh.100 in H.R.P.Suit No.1858 of 2002 by which the learned Small Causes Court has dismissed the said application submitted by the petitioners- original defendants submitted under Section 10 of the Code of Civil Procedure, to stay the said suit till the final disposal of Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 pending in the City Civil Court at Ahmedabad. 3. Few facts are necessary for the determination of present Special Civil Application: 3.1 That the petitioner No.1 herein claiming SCA/27464/2007 3/25 JUDGMENT to be the administrator of Yusufbhai Haji Hakimuddinbhai and Chandabhai Haji Hakimuddinbhai filed one H.R.P.Suit No.544 of 2001 in the Small Causes Court at Ahmedabad on 3.5.2001 against the petitioners No.2 and 3 herein and also the respondents herein for injunction to restrain the petitioners No.2 and 3 from inter-alia transferring or parting with the possession of the suit premises to the respondents herein. In the said suit the original plaintiffs of the said suit also applied for temporary injunction, and it appears that, by order dated 11.5.2002 the learned Small Causes Court, Ahmedabad, directed both the parties to maintain status-quo in respect of the suit premises. That thereafter one Civil Suit No.2226 of 2001 came to be filed by the petitioners herein against the present respondents herein in the City Civil Court at Ahmedabad for declaration that the receipt dated 3.5.2001 does not confer any right on the respondents herein and for injunction. It appears that in the said suit temporary injunction was sought but the same was not SCA/27464/2007 4/25 JUDGMENT granted and the notice of motion was ordered to be heard with the said suit. It further appears that on 17.5.2001 the petitioners No.2 and 3 herein filed Civil Suit No.2229 of 2001 in the City Civil Court at Ahmedabad for declaration that the power of attorney dated 13.4.2001 was void and that the declaration dated 13.4.2001 is also void and prayed for injunction. The notice of motion for temporary injunction in the said suit is also ordered to be heard along with the suit and no injunction has been granted. On 1.6.2001 the petitioners No.2 and 3 describing as partners of M/s.M.S.Gandhi has filed one Civil Suit No.2344 of 2001 in the City Civil Court at Ahmedabad against the respondents herein alleging that the certain writings were obtained by the respondents on 17.5.2001 in blank and therefore the suit for declaration and injunction has been filed. Even notice for motion for temporary injunction in the said suit is also ordered to be heard with the suit and no injunction has been granted. SCA/27464/2007 5/25 JUDGMENT 3.2 That on 16.10.2002 the respondents herein – original plaintiffs had filed one H.R.P.Suit No.1858 of 2002 in the Small Causes Court at Ahmedabad for a declaration that the respondents are the tenants of the suit premises and prayed for injunction. It is to be noted that the said H.R.P.Suit No.1858 of 2002 is filed under Section 28 of the Bombay Rent Act. 3.3 It further appears that the petitioner No.1 has also filed one Civil Suit No.3365 of 2001 in the City Civil Court at Ahmedabad against the respondents and the Ahmedabad Municipal Corporation alleging negligence on the part of the Ahmedabad Municipal Corporation and prayed for cancellation of the certificate granted in the name of partnership of respondents by name of M/s.Tulsi Enterprise under the Shops and Establishments Act. That one Civil Suit No.3971 of 2002 is also filed by the petitioners No.2 and 3 on 3.12.2002 for an injunction restraining the respondents herein from entering the suit property. It appears that in the said suit also SCA/27464/2007 6/25 JUDGMENT the temporary injunction was also not granted and the notice of motion was ordered to be heard with the said suit. 3.4 Thus, considering the above, it appears that H.R.P.Suit No.544 of 2001 was the suit filed first prior in time then of the other suits. It further appears that pursuant to the subsequent order, H.R.P. Suit No.544 of 2001 and H.R.P.Suit No.1858 of 2002 were ordered to be consolidated and were ordered to be heard together. It also appears that two Special Civil Applications being Special Civil Applications No.11485 of 2003 and 11506 of 2003 were filed before this Court and the said Special Civil Applications are disposed of by directing the trial court for early disposal of H.R.P.Suit No.544 of 2001 and H.R.P. Suit No.1858 of 2002. It appears that thereafter the plaintiffs of H.R.P.Suit No.544 of 2001 petitioner No.1 herein submitted an application permitting him to withdraw the said suit and in spite of the objection raised by the respondents herein, the learned Small Causes Court permitted SCA/27464/2007 7/25 JUDGMENT the original plaintiff of H.R.P.Suit No.544 of 2001 to withdraw the said suit without prejudice to the rights and contentions of the respondents herein for early hearing of proceedings of H.R.P.Suit No.1858 of 2002 as well as without prejudice to their right of action in H.R.P.Suit No.544 of 2001 in view of the fact that action against th petitioner for disobedience of order dated 11.3.2002 was pending. That thereafter the petitioners herein submitted application Exh.100 in H.R.P.Suit No.1858 of 2002 under Section 10 of the CPC to stay the proceedings of H.R.P.Suit No.1858 of 2002 till the final disposal of Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 pending in the City Civil Court at Ahmedabad. 3.5 It was the contention on behalf of the petitioners in the application Exh.100 that the suits filed by the respective petitioners being Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 are prior SCA/27464/2007 8/25 JUDGMENT in time, and in the aforesaid three suits, certain documents such as receipt, power of attorney etc., which are under challenge by the petitioners, will have to be relied upon by the parties in the H.R.P.Suit No.1858 of 2002, and therefore if H.R.P.Suit No.1858 of 2002 is decided first, in that case the aforesaid three suits would become infructuous. It was submitted that the dispute in the aforesaid suits as well as H.R.P.Suit No.1858 of 2002 is somewhat similar and therefore it was requested to stay the said H.R.P.Suit No.1858 of 2002 till the final disposal of the aforesaid suits by invoking Section 10 of the CPC. 3.6 The said application was opposed by the respondents herein by submitting that the petitioner No.1 – original plaintiff of H.R.P.Suit No.544 of 2001 has deliberately and with a malafide intention withdrew the said H.R.P.Suit No.544 of 2001 with a view to see that Civil Suit No.2229 of 2001 and other suits may become the first prior in time. It was also SCA/27464/2007 9/25 JUDGMENT further contented that, in the facts and circumstances of the case, Section 10 of the CPC would not be applicable, as the relief which is sought in the H.R.P.Suit No.1858 of 2002 is not capable of being granted by the City Civil Court, as only the Small Causes Court would have the jurisdiction to grant the reliefs prayed in the H.R.P.Suit No.1858 of 2002. It was also further submitted that as such an order was already passed to consolidate the H.R.P.Suit No.544 of 2001 and H.R.P.Suit No.1858 of 2002 and H.R.P.Suit No.544 of 2001 was prior in time. However, subsequently the same came to be withdrawn by the plaintiff with a malafide intention so that the plaintiff can submit the application under Section 10 of the CPC to stay the further proceedings of H.R.P.Suit No.1858 of 2002. The learned Small Causes Court, Court No.12, Ahmedabad by impugned order dated 9.7.2007 dismissed the said application below Exh.100 by observing that Section 10 of the CPC would not be applicable. SCA/27464/2007 10/25 JUDGMENT 3.7 Being aggrieved and dissatisfied with the orders passed by the Small Causes Court at Ahmedabad dated 9.7.2007/10.7.2007 in dismissing the application Exh.100, the petitioners – original plaintiffs of Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 have preferred present petition under Article 227 of the Constitution of India. 4. Shri Hormaz B.Shethna, learned advocate appearing on behalf of the petitioners has vehemently submitted that, looking to the reliefs sought in Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 filed by the respective petitioners in the City Civil Court at Ahmedabad challenging certain documents such as receipt, power of attorney, declaration etc., which have been relied upon by the respondents herein-original plaintiffs in the H.R.P.Suit No.1858 of 2002 and the aforesaid three suits are filed prior in time, the learned trial court ought to have stayed the further proceedings of H.R.P.Suit No.1858 of 2002. It is SCA/27464/2007 11/25 JUDGMENT submitted by him that, if the further proceedings of H.R.P.Suit No.1858 of 2002 are not stayed, in that case the aforesaid civil suits would become infructuous. It is submitted that the respondents herein-original plaintiffs are going to rely upon the documents which are challenged in the aforesaid three civil suits by the petitioners herein and therefore when the said issues are directly and substantially in issue in a previously instituted suit between the same parties, the further proceedings of H.R.P.Suit No.1858 of 2002 ought to have been stayed till the final disposal of the aforesaid three civil suits. It is further submitted by Shri Hormaz B.Shethna, learned advocate appearing on behalf of the petitioners that the trial court has materially erred in dismissing the application Exh.100. 4.1 Shri Hormaz Shethna, learned advocate appearing on behalf of the petitioners has relied upon the decision of Madras High Court in the case of RADHIKA KONEL PAREKH vs. KONEL PAREKH SCA/27464/2007 12/25 JUDGMENT reported in AIR 1993 Madras 90 as well as the decision of Punjab and Haryana High Court in the case of M/S.SEHGAL KNITWEARS vs. M/S.SHRESTH INTERNATIONAL AND ANOTHER reported in AIR 2001 Punjab and Haryana 160. 5. On the other hand, Shri Amar Bhatt, learned advocate appearing on behalf of respondents-original plaintiffs of H.R.P.Suit No.1858 of 2002 has vehemently submitted that as the H.R.P.Suit No.1858 of 2002 has been filed in the Small Causes Court at Ahmedabad which is having the exclusive jurisdiction to decide the dispute raised in the said suit and the relief claimed in the said suit is not capable of being granted by the City Civil Court, Ahmedabad, and therefore Sec.10 of the CPC would not be applicable. It is submitted that as such H.R.P.Suit No.544 of 2001 filed by the petitioner No.1 was filed first prior in time and deliberately with a malafide intention the petitioner No.1 withdrew the said suit so that the aforesaid three civil suits i.e. Civil Suit SCA/27464/2007 13/25 JUDGMENT No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 can be said to have been filed prior in time than the H.R.P.Suit No.1858 of 2002, and so that the petitioner can prefer an application under Section 10 of the CPC, and prayed to stay further proceedings of H.R.P.Suit No.1858 of 2002. It is submitted that the intention of the petitioner is to see that hearing of H.R.P.Suit No.1858 of 2002 is delayed. 5.1 Shri Amar Bhatt, learned advocate appearing on behalf of respondents-original plaintiffs has relied upon the decision of learned Single Judge of this Court in the case of KANULAL KRISHNALAL TRIVEDI VS. KARANLAL KRISHNALAL TRIVEDI reported in 1997(3) GLR 1948; decision of Bombay High Court in the case of MINOCHER BEHRAMJI DAMANIA VS. HEMA N. DADACHANJI AND OTHERS reported in AIR 1982 Bombay 151; decision of Mysore High Court in the case of CHANNABASAPPA KAMADLAL AND SONS VS. KISHAN CHAND AND CO., AND OTHERS reported in AIR 1972 Mysore 112 and the decision of Calcutta High SCA/27464/2007 14/25 JUDGMENT Court in the case of MIRTA LINA PR. LTD. VS. THE FINLAY MILLS LIMITD AND ANOTHER reported in AIR 1982 Calcutta 41. 5.2 Relying upon the aforesaid decisions and by making the above submissions, it is requested to dismiss the present Special Civil application. 6. Heard the learned advocates appearing on behalf of the respective parties. 7. At the outset it is required to be noted that H.R.P.Suit No.544 of 2001 was filed by the petitioner No.1 and thereafter further three suits being Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 came to be filed by the respective petitioners in the City Civil Court at Ahmedabad challenging the certain documents such as power of attorney, receipt, declaration etc., and prayed for declaration and permanent injunction. That thereafter the respondents No.2 and 3 had filed H.R.P.Suit No.1858 of 2002 before the Small SCA/27464/2007 15/25 JUDGMENT Causes Court at Ahmedabad for a declaration that they are the tenants of the suit premises and for injunction. It is to be noted that the said suit i.e. H.R.P.Suit No.1858 of 2002 is filed under Section 20 of the Bombay Rent Act which can only be heard and decided by the learned Small Causes Court at Ahmedabad and the City Civil Court has no jurisdiction to hear and grant the reliefs which are prayed for in the H.R.P.Suit No.1858 of 2002. Subsequently, H.R.P.Suit No.544 of 2001 and H.R.P.Suit No.1858 of 2002 came to be consolidated and ordered to be heard together and they were expedited. The original plaintiff of H.R.P.Suit No.544 of 2001 withdrew the said suit unconditionally and it is the case on behalf of the respondents herein that with a malafide intention and so that the petitioner can submit the application under Section 10 of the CPC to make Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 to have been filed first prior in time, the said H.R.P.Suit No.544 of 2001 came to be withdrawn. Be that it may, the SCA/27464/2007 16/25 JUDGMENT question which is posed for consideration of this Court is as to whether, in the facts and circumstances of the case, Section 10 of the CPC would be applicable or not, more particularly, in view of the relief sought in H.R.P.Suit No.1858 of 2002 which can only be exclusively claimed and granted by the Small Causes Court and the City Civil Court would not have any jurisdiction to grant the relief which is sought in H.R.P.Suit No.1858 of 2002. 7.1 Petitioners submitted the application Exh.100 invoking Section 10 of the CPC. Section 10 of the CPC reads as under: “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 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 SCA/27464/2007 17/25 JUDGMENT 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.” 7.2 Now considering Section 10 of the CPC, it provides that 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 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 . Thus the Court in earlier suit also should have jurisdiction to grant the reliefs claimed in the subsequent suit. As stated hereinabove, in Civil Suit No.2226 of 2001 what is prayed is the declaration that the receipt dated 3.5.2001 does not confer any right on the respondents. In the Civil Suit No.2229 of SCA/27464/2007 18/25 JUDGMENT 2001 pending in the City Civil Court at Ahmedabad the petitioners No.2 and 3 herein have prayed for a declaration that the power of attorney dated 13.4.2001 is void and that the declaration dated 13.4.2001 is also void. Civil Suit No.2344 of 2001 is filed by the petitioners No.2 and 3 herein in the City Civil Court at Ahmedabad against the respondents alleging therein that certain writings were obtained by the respondents on 17.5.2001 in blank and therefore the suit for declaration and permanent injunction prayed. 8. On the other hand, and as stated above, H.R.P.Suit No.1858 of 2002 is filed by the respondents in the Small Causes Court at Ahmedabad for a declaration that the respondents are the tenants of the suit premises. Thus, the reliefs sought in H.R.P.Suit No.1858 of 2002 can only be heard and granted by the Small Causes Court at Ahmedabad and the City Civil Court at Ahmedabad has no jurisdiction to hear and grant the reliefs which are prayed for in the H.R.P.Suit No.1858 of 2002. Similarly the reliefs SCA/27464/2007 19/25 JUDGMENT which are sought in the aforesaid civil suits being Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 also cannot be granted by the Small Causes Court at Ahmedabad. Thus, the jurisdiction to grant the reliefs in the aforesaid three civil suits and the jurisdiction to grant the reliefs in H.R.P.Suit No.1858 of 2002, both are different; one before the City Civil Court at Ahmedabad and another before the Small Causes Court at Ahmedabad. The Small Causes Court at Ahmedabad has an exclusive jurisdiction to grant relief sought in H.R.P.Suit No.1858 of 2002. Therefore, although the subject matter of both the suits can be said to be substantially the same, the subsequent suit being H.R.P.Suit No.1858 of 2002 filed before the Small Causes Court at Ahmedabad cannot be stayed since the City Civil Court at Ahmedabad before whom earlier suits are pending has no jurisdiction to grant the reliefs which are claimed in the subsequent suit under the Presidency of Small Cause Courts Act, 1882 or the Bombay Rent Act. Therefore the requisite SCA/27464/2007 20/25 JUDGMENT conditions for stay of the suit under Section 10 of the CPC are not fully satisfied. Therefore the learned Small Causes Court has rightly dismissed the application Exh.100 submitted by the petitioners under Section 10 of the CPC by not staying the subsequent suit. The view which is being taken by this Court is fortified by the decision of the Bombay High Court in the case of Minocher Behramji Damania (supra). In the said decision, in an identical situation, when a suit was filed by “A” in the Small Causes Court for a declaration that he was the tenant of “B” in respect of certain premises and subsequently “B” filed a suit in the City Civil Court for possession on the ground that “A” was a trespasser and for injunction restraining “A” from interfering with his possession and an application was submitted under Section 10 of the CPC to stay the proceedings of suit before the City Civil Court. The Bombay High Court, while considering Section 10 of the CPC read with Section 151 of the CPC has held that, for application under Section 10 of the CPC, mere SCA/27464/2007 21/25 JUDGMENT identity of subject matter of the suit is not enough and the Court in earlier suit should also have jurisdiction to grant reliefs claimed in subsequent suit. The object of Section 10 of the CPC is to prevent Courts of concurrent jurisdiction from adjudicating upon the parallel litigations between the same parties having same subject matter in issue, and for that purpose both the courts should have concurrent jurisdiction. The jurisdiction under the Presidency of Small Cause Courts Act or the Bombay Rent Act and the jurisdiction for granting the declaration by the City Civil Court both are different. The three essential conditions that are necessary for grant of stay of suit under Section 10 of the CPC are: (i) that the matter in issue in the second suit is directly and substantially in issue in the previously instituted suit. (ii) that the parties in the two suits are the same. SCA/27464/2007 22/25 JUDGMENT (iii) that the Court in which the first suit is instituted is the Court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit. 8.1 Therefore what is required to be considered is as to whether the first suit is instituted in the Court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit; it deals with regard to competency to entertain and grant the relief claimed in the suit. 8.2 Identical question also came to be considered by the Calcutta High Court in the case of Mirta Lina Pr. Ltd. (supra), and dealing with Section 10 of the CPC, the Calcutta High Court in the said decision has held that, while considering the expression “having jurisdiction to grant the relief claimed” contemplates the competency of the first court to grant the reliefs claimed in the second suit. 8.3 The decision relied upon by the learned SCA/27464/2007 23/25 JUDGMENT advocate appearing on behalf of the petitioners of Madras High Court in the case of Radhika Konel Parekh (supra) and the decision of Punjab and Haryana High Court in the case of M/S.Sehgal Knitwears (supra) will not be applicable to the facts of the present case in view of the discussions hereinabove. 9. Considering the above, and when the subsequent suit filed by the respondents herein i.e. H.R.P.Suit No.1858 of 2002 is before the Small Causes Court under the Presidency of Small Cause Courts Act and the Bombay Rent Act, and the Small Causes Court has the exclusive jurisdiction to grant the reliefs in the said suit which is not capable of being granted by the City Civil Court at Ahmedabad, Section 10 of the CPC would not be applicable and therefore the learned Small Causes Court has rightly dismissed the application submitted by the petitioners under Section 10 of the CPC, which was to stay the H.R.P.Suit No.1858 of 2002 pending in the Court of Small Causes Court at Ahmedabad till the final SCA/27464/2007 24/25 JUDGMENT disposal of Civil Suit No.2229 of 2001, Civil Suit No.2226 of 2001 and Civil Suit No.2344 of 2001 pending in the City Civil Court at Ahmedabad.