* THE HON'BLE Ms. JUSTICE G. ROHINI + CIVIL REVISION PETITION No.2685 of 2011 % 05.11.2011 # Khandrika Jagadeeshwara Sharma ….Petitioner Vs. $ Khandrika Chayanatha Sharma …. Respondent ! Counsel for the Petitioner: Sri K.Ramanna Dora ^ Counsel for Respondent : Sri K.Someswara Kumar <Gist : >Head Note: ? Cases referred: 2002 (6) ALD 675 1999 (6) ALD 714 AIR 1989 ORISSA 154 AIR 2004 SUPREME COURT 3504 THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No. 2685 OF 2011 Dated: 05.11.2011 Between : Khandrika Jagadeeshwara Sharma … Petitioner And Khandrika Chayanatha Sharma … Respondent The Court made the following:- THE HON’BLE Ms. JUSTICE G. ROHINI CIVIL REVISION PETITION No. 2685 OF 2011 ORDER: The revision petitioner is the plaintiff No.1 in O.S.No.1279 of 2004 on the file of the Court of the VII Additional Senior Civil Judge, Ranga Reddy District at L.B.Nagar. The 1st respondent herein/the defendant filed I.A.No.1475 of 2005 under Section 10 of CPC seeking stay of the proceedings in the suit till the disposal of Second Appeal No.437 of 2004 pending on the file of this Court. The said application was allowed by the Court below by order dated 11.04.2011 and aggrieved by the same, the present Revision Petition is filed by plaintiff No.1. I have heard the learned counsel for both the parties and perused the material available on record. O.S.No.1279 of 2004 has been filed by the revision petitioner seeking a decree for recovery of possession of the suit schedule property and for damages for use and occupation at the rate of Rs.2,000/- per month. The revision petitioner/plaintiff No.1 claims title in respect of the suit schedule property by virtue of a will dated 12.01.1990 executed by his father. It is pleaded that the defendant, who has been in permissive possession of the said property, had earlier filed O.S.No.849 of 1997 claiming that the plaintiffs had executed an agreement of sale dated 18.09.1992 in his favour, agreeing to sell the suit schedule property and received full sale consideration. The said suit was decreed by judgment dated 04.02.2003 and challenging the same, the plaintiffs preferred A.S.No.64 of 2003 in the Court of the II Additional District Judge, Ranga Reddy District. The said appeal was allowed by judgment dated 23.01.2004 thereby setting aside the decree for specific performance granted by the trial Court in O.S.No.849 of 1997 on the ground that the suit was barred by limitation. Claiming that the judgment of the appellate Court in A.S.No.64 of 2003 became final, the revision petitioner filed O.S.No.1279 of 2004 for recovery of possession of the suit schedule property contending that the suit for specific performance filed by the defendant having been dismissed, his possession of the plaint schedule property has become totally unlawful. The defendant filed written statement contesting the suit claim. That apart, the defendant also filed I.A.No.1475 of 2005 under Section 10 of CPC for stay of the suit proceedings stating that against the judgment and decree in A.S.No.64 of 2003 on the file of the Court of the II Additional District Judge, Ranga Reddy District, he preferred Second Appeal No.437 of 2004, which was admitted by this Court and status quo was directed to be maintained by order dated 29.06.2004 in C.M.P.No.9618 of 2004. While pleading that the subject matter of O.S.No.1279 of 2004 and the subject matter in the earlier suit i.e., O.S.No.849 of 1997 is one and the same and the proceedings are between the same parties, the proceedings in O.S.No.1279 of 2004 were sought to be stayed till the disposal of the Second Appeal No.437 of 2004 on the file of this Court. Having regard to the fact that both the plaintiffs and the defendant are parties to the Second Appeal No.437 of 2004 and the subject matter of both the proceedings is the same, the Court below allowed the application and granted stay of proceedings in O.S.No.1279 of 2004 till the disposal of Second Appeal No.437 of 2004 pending on the file of this Court. The said order is assailed in this Revision Petition contending that merely because the schedule property is the same in both the suits, it cannot be said that there is any possibility of contradictory decisions in respect of the same cause of action and therefore, Section 10 of CPC is not at all attracted. On the other hand, the learned counsel for the respondent, while pointing out that the agreement of sale dated 18.09.1992 was found to be true and valid in O.S.No.849 of 1997 and the appellate court has also upheld the said finding, contended that since the very same issue is involved in O.S.No.1279 of 2004, the Court below had rightly stayed the proceedings in O.S.No.1279 of 2004. It is true that O.S.No.1279 of 2004 is for recovery of possession of the suit schedule property whereas the earlier suit i.e., O.S.No.849 of 1997 was filed by the defendant herein for specific performance of the agreement of sale dated 18.09.1992. However the schedule property of both the suits is common and the parties to both the suits are also common. Moreover, a reading of the plaint in O.S.No.1279 of 2004 makes it clear that the said suit has been filed after the judgment and decree in A.S.No.64 of 2003 contending that the suit for specific performance having been dismissed, the possession of the defendant in respect of the plaint schedule property has become unlawful. Thus the validity of the agreement of sale dated 18.9.1992 and the consequences thereof is the matter in issue in both the suits. As per Section 10 of CPC the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties and is pending is liable to be stayed. One of the tests for determining the applicability of Section 10 is whether the final decision in the previously instituted suit operates as res judicata in the subsequent suit. For ready reference, Section 10 of C.P.C. may be reproduced: “10. Stay of suit:- No Court shall proceed with the trial of any suit 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.” As noticed above, revision petitioner is seeking recovery of vacant possession of the suit property solely on the ground that the suit for specific performance filed by the defendant was dismissed and therefore, his possession has become unlawful. It is also relevant to note that both the trial Court and the lower appellate Court recorded a finding in the earlier suit filed for specific performance that the agreement, dated 18.09.1992,on the basis of which the specific performance was sought, was true and valid. However, the decree for specific performance granted by the trial Court was set aside by the lower appellate Court on the ground that the suit was barred by limitation and the correctness of the said finding is now the subject matter of Second Appeal pending before this Court. Thus the final decision in the second appeal would undoubtedly operate as res judicata in the subsequent suit for recovery of possession. Therefore, as rightly held by the Court below Section 10 of C.P.C. is attracted and the proceedings in the later suit shall be stayed. The decisions cited by the learned counsel for the petitioner i.e., P.Savitha Krishna Reddy v. Andhra Bank, Sultan Bazar, Hyderabad[1], Gollu Bhavani Sankar v. Bhogavalli Rajeswara Rao and another[2], Lachaman Nepak and others v. Badankayalu Syama Babu Subudhi and another[3] and Pukhraj D.Jain and others v. G.Gopalakrishna[4], are clearly distinguishable on facts and therefore, they have no relevance to the case on hand. For the aforesaid reasons, I am unable to hold that the order under Revision suffered from any patent error of fact or law. Hence, the interference by this Court is not warranted and accordingly, the Revision Petition is dismissed. No costs. ___________ G. ROHINI, J Date: 05.11.2011 Note:- LR copy to be marked. (B/O) Ivd [1] 2002 (6) ALD 675 [2] 1999 (6) ALD 714 [3] AIR 1989 ORISSA 154 [4] AIR 2004 SUPREME COURT 3504