SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: ORDER Jhanwar Lal Vs. Geeta & Ors SB Civil Writ Petition No.7723/2007 under Article 226 of the Constitution of India. DATE OF ORDER :: 12.1.2009 PRESENT HON'BLE MR. PRAKASH TATIA, J. REPORTABLE Mr.NM Lodha, for the petitioner. Mr.AK Rajvanshy, for the respondents. <><><> BY THE COURT: Heard learned counsel for the parties. The petitioner is aggrieved against the order dated 27th Oct., 2007 by which the petitioner's application filed under Section 10 CPC was dismissed by the trial court. Brief facts of the case are that it is alleged that a sale deed was executed by Madan Chand on 12th May, 1961 in favour of Luni Devi. The said Madan Chand also executed a rent deed in favour of Luni Devi. However, in the year SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 2 1987, the suit for cancellation of the said sale deed and rent deed was filed in the trial court by the said Madan Chand which was registered as Civil Original Suit No.28/1987. After the death of Madan Chand his legal representatives – sons – namely Navratan and Ashok were impleaded as plaintiff in the said civil original suit no.28/1987. The aforesaid civil original suit no.28/1987 was dismissed by the court of Addl. Civil Judge, Bikaner vide judgment and decree dated 31st Oct., 1990. Being aggrieved against the judgment and decree, the legal representatives of Madan Chand, Navratan and Ashok preferred regular first appeal being Civil Appeal (Decree) No.45/1990, which was allowed by the first appellate court vide judgment and decree dated 20th Nov., 1993. Against the said judgment and decree passed by the first appellate court dated 20th Nov., 1993, Civil Second Appeal No.257/93 was preferred before this Court, which was admitted by this Court vide order dated 16th Dec., 1993 after framing the following substantial questions of law : - “1. Whether the findings of the first appellate court that the sale-deed dated 12.05.61 SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 3 executed by Madan Chand in favour of Luni Devi (defendant No.1) was not for legal necessity of the family and to discharge the previous debts are perverse? 2. Whether the sale-deed could be held invalid to the extent of 2/3rd share of the plaintiff even in the absence of any pleading that it was executed for illegal or immoral purposes?” The respondents nos. 1 to 3 who are daughters of Madan Chand filed the suit on 7th July, 2000 for cancellation of the same sale deed dated 12th May, 1961 in relation to same subject property and that suit is pending. According to learned counsel for the respondents nos. 1 to 3 the said suit has already been stayed by the trial court under Section 10 of the CPC. The same respondents nos. 1 to 3 the daughters of the deceased Madan Chand also filed another suit and i.e., the suit for partition of the properties wherein the defendant-petitioner submitted application under Section 10 of CPC, but that was dismissed by the trial court vide order dated 27th Oct., 2007, hence, this writ petition has been preferred. According to learned counsel for the petitioner the core question involved in the earlier litigation between the SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 4 parties – the successors of Madan Chand is whether the property in question is ancestral property and whether that could have been sold by Madan Chand under any capacity by valid sale deed so as to bound all others. It is submitted that the share of the deceased Madan Chand can only devolve upon the respondents nos. 1 to 3 and other legal heirs of Madan Chand. Same is the case of the plaintiffs nos. 1,2 and 3 that they have share in the strip of deceased Madan Chand, therefore, they are claiming 1/5th share for each of the plaintiffs, which was belonging originally to Madan Chand before his death. It is submitted that in view of the substantial questions of law framed by the first appellate court no.1 and 2, it is clear that even in the suit no.28/87, the case of Madan Chand was that he could not have sold the property as there was no legal necessity and therefore, the substantial question no.1 was framed. The second substantial question of law clearly denotes that the issue involved in the said appeal is that even if the said property is not found to be sold for legal necessity to discharge previous debts whether the sale deed to the extent of 2/3rd share of Madan Chand is binding. SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 5 The trial court found that those issues are different and common issues are not involved in the subsequently filed suit because in earlier suit the prayer was for cancellation of the sale deed as well as for cancellation of the rent deed executed by deceased Madan Chand. According to learned counsel for the petitioner the court committed serious error of jurisdiction by not looking into the facts of the case and read the relief bereft of the facts and failed to appreciate full facts of the cases and the issues involved in the suits. The suit under Section 10 of CPC is required to be stayed when issues in subsequently filed suit are directly or substantially the same to the earlier litigation as the Section 10 CPC is mandatory in its nature. Learned counsel for the respondents vehemently submitted that the relief of cancellation of sale deed and cancellation of rent deed is entirely different subject matter and even in case the second appeal is decided either way, none of the issue involved in the subsequently filed suit will be affected or will stand decided. It is submitted that the plaintiffs-respondents nos. 1,2 and 3 have independent right in the property though through deceased SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 6 Madan Chand, but their rights have not been decided and could not have been adjudicated in the previous litigation. It is submitted that the dispute is amongst the decedents of the deceased Madan Chand and, therefore, their shares are required to be determined. Learned counsel for the respondents relied upon the judgment of the Hon'ble Apex Court delivered in the case of National Institute of Mental Health & Neuro Sciences Vs. C. Parameshwara reported in AIR 2005 SC 242 and judgment of this court delivered in the case of Ramotar Vs. Addl. District Judge (Fast Track), Sikar reported in 2005 (2) RDD 50 (Raj.). I considered the submissions of learned counsel for the parties and perused the facts of the case. Section 10 in the CPC has been incorporated with specific purpose that no court shall proceed with the trial of any subsequently filed suit in which the matters in issue involved is directly and substantially same and involved issue in previously instituted suit between the same party, or between the parties under whom they or any of them claim litigating under the same title when such previously instituted suit is pending in the same or any other Court in SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 7 India having jurisdiction to grant the relief claimed. The object is that the courts time may not be wasted by the trial for deciding the same issues, which is already pending decision in another suit. The provision is well in consonance with the public policy that there should not be two decisions for one issue, which may result into serious embarrassment of the court also. If two courts records the finding contrary to each other on the basis of evidence came on record in two suits separately because of parallel proceedings in two suits, which may happen because of the reason that in one case the party may fail to produce any evidence and thereafter, may become wise and produce more evidence in another suit as in subsequently filed suit there will be an opportunity to the party to produce evidence, which legally he could not have produced after his closure of evidence in previous round of litigation and then that will be a most embarrassing situation for the court as the court can decide the suit and the issue involved in the suit only in accordance with the evidence available on record and there will be two set of evidence in two suits. It is also true that unless the conditions under Section 10 are SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 8 satisfied, the proceedings of suit cannot be stayed because the litigant has right to get decision from the court expeditiously and without any delay, but when conditions of Section 10 CPC are satisfied, it is better to stay the proceedings of the subsequently filed suit. In the present case, the admitted fact is that the plaintiffs are decedents of Madan Chand. Madan Chand and Luni Devi are the decedents of deceased Subhagmal. It has been alleged that Madan Chand executed the sale deed in favour of Luni Devi on 12th May, 1961 and also executed the rent deed. Madan Chand himself filed the suit no.28/87 with the relief for cancellation of the registered sale deed dated 12th May, 1961 and the rent deed executed by him in favour of Luni Devi. In the said suit, it appears that plea of property being ancestral in the hand of Madan Chand was taken and, therefore, in view of the substantial questions of law framed in second appeal and referred above, it clearly shows that there is a plea that the property was sold by Madan Chand for the legal necessity for the property and to discharge the previous debts. The substantial question of law no.2 is to get the benefit of the sale deed dated 12th SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 9 May, 1961 to the extent of 2/3rd share its case it is found that the sale was not for the legal necessity of the family and to discharge the previous debts then Madan Chand can be held bound by the sale deed executed by him to the extent of his share. Section 10 as stated above provides that in a situation when there are two suits and in earlier suit, a party was there and in subsequently filed suit a party is claiming through the one of the party in earlier suit or any of them claimed litigating under some title then the trial court in the subsequent suit cannot proceed. The plaintiffs are claiming themselves to be decedents of Madan Chand and claiming the share in the property through deceased Madan Chand and issue substantially involved in this subsequently filed suit is about the nature of the property in the hand of Madan Chand. Without deciding that issue, the relief cannot be granted either in the earlier filed suit or in the subsequently filed suit. The trial court in present case merely looked into the reliefs claimed by the parties in the suits and failed to notice the foundational facts on the basis of which the reliefs have SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 10 been claimed by the plaintiff in subsequently filed suit and thereby committed error of jurisdiction by not exercising jurisdiction under Section 10 CPC. Learned counsel for the respondents submitted that second appeal may take sever years and even decades for decision and till then the proceedings of the suit may not be stayed. The argument is liable to be rejected as that cannot be ground for holding trial for one issue twice by the court. And further more, how allowing trial in second suit would be beneficial to parties? The procedure for trial and thereafter, of appeal and further appeal will not allow subsequently filed suit a precedence over earlier suit. It is better to wait for a decision on the issue between the parties for which litigation was initiated in earlier point of time instead of proceeding with the trial on same issue again during pending adjudication on same issue in earlier filed suit and it is better to stay the proceedings of the subsequently filed suit provided it falls within the ambit of Section 10 of CPC. Learned counsel for the respondent cited two judgments referred above and from the facts it is clear that SBCWP No.7723/2007 Jhanwar Lal Vs. Geeta & Ors. 11 in said judgments it has been laid down that in a subsequently initiated litigation if the relief is consequential and issues are directly and substantially are not the same in the two litigation, the proceedings of subsequent litigation cannot be stayed. As observed above, in this case, the core issue and substantial question involved in the two litigation including the issues are the same and that may even go to the root of the subsequently filed litigation, therefore, it is appropriate to stay the proceedings of the subsequently filed suit i.e., proceedings of the civil original suit no.61/2005 till the pendency of the SB Civil Second Appeal No.297/93. In view of the above, the writ petition of the petitioner is allowed as mentioned above. (PRAKASH TATIA), J. c.p.goyal/-