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Kshitish Chandra Bhowmick Vs. Harakchand Betala and ors. - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 12 of 1982
Judge
ActsCode of Civil Procedure (CPC), 1905 - Sections 10 and 115
AppellantKshitish Chandra Bhowmick
RespondentHarakchand Betala and ors.
Appellant AdvocateB.C. Das and A.K. Das and N.C. Das, Advs.
Respondent AdvocateB. Sarma, Y.K. Phukan and A.C. Sarma, Advs.
DispositionPetition allowed
Prior history
B.L. Hansaria, J.
1. A suit for eviction filed by the petitioner has been stayed by the learned trial Court till disposal of an appeal arising out of T. S. No. 5/71 which had been filed by pro forma defendant 7 for declaration of 3/5th share in a property, which is the subject matter of the eviction suit also, and for partition by metes and bounds. The stay has been granted on a petition filed under Section 10 of the Civil P.C. by pro forma defendant 7. Feeling aggrieved, the plaintiff has
Excerpt:
.....the court let it therefore, be seen whether the impugned order is maintainable in law or not. 3. the present suit out of which this revision arises is for eviction of defendants 1 and 2. it has been clearly stated in the plaint that pro forma defendant 7 was one of the heirs of late kedar bhowmick. it may be repeated that it is a different matter if the eviction suit were to fail (if at all) on the ground that the plaintiff is not the absolute owner of the property, or that other heirs of kedar bhowmick had not joined in issuing the notice of eviction......it has been clearly stated in the plaint that pro forma defendant 7 was one of the heirs of late kedar bhowmick. as he did not, however, join hands with the plaintiff in ejecting the main defendants, he was impleaded as a pro forma defendant. a plea was, however, taken by this defendant that the suit was not maintainable at the behest of the plaintiff alone, who was not the absolute owner of the premises. earlier, this defendant had instituted a suit for declaration that he along with two daughters of late kedar bhowmick was entitled to 3/5th share in the property; and the plaintiff and another daughter who were impleaded as defendants in t. s. no. 5/71 could take only 2/5th share. this suit was dismissed, but an appeal was pending in the court of district judge when the petition under.....
Judgment:

B.L. Hansaria, J.

1. A suit for eviction filed by the petitioner has been stayed by the learned trial Court till disposal of an appeal arising out of T. S. No. 5/71 which had been filed by pro forma defendant 7 for declaration of 3/5th share in a property, which is the subject matter of the eviction suit also, and for partition by metes and bounds. The stay has been granted on a petition filed under Section 10 of the Civil P.C. by pro forma defendant 7. Feeling aggrieved, the plaintiff has approached this Court in revision.

2. As Section 10 relates to the jurisdiction of the Court to proceed with the trial, and is also related to the question of res judicata, as would be seen later, any wrong decision would undoubtedly attract the provision of Section 115 of the Code, as to stay a suit where it could not have been amounts to failure to exercise jurisdiction vested in the Court Let it therefore, be seen whether the impugned order is maintainable in law or not.

3. The present suit out of which this revision arises is for eviction of defendants 1 and 2. It has been clearly stated in the plaint that pro forma defendant 7 was one of the heirs of late Kedar Bhowmick. As he did not, however, join hands with the plaintiff in ejecting the main defendants, he was impleaded as a pro forma defendant. A plea was, however, taken by this defendant that the suit was not maintainable at the behest of the plaintiff alone, who was not the absolute owner of the premises. Earlier, this defendant had instituted a suit for declaration that he along with two daughters of late Kedar Bhowmick was entitled to 3/5th share in the property; and the plaintiff and another daughter who were impleaded as defendants in T. S. No. 5/71 could take only 2/5th share. This suit was dismissed, but an appeal was pending in the Court of District Judge when the petition under Section 10 was filed. Though this appeal has also been subsequently dismissed, a second appeal to this Court is yet to be disposed of. On these facts, it has been held by the learned trial Court that the points involved and the schedules in both the suits are the same. It has also been opined that 'issues in both the suits directly and substantially the

same'. Being of this view, the stay as prayed for has been granted.

4. A reference to Section 10 shows that a subsequent suit can be stayed if, inter alia, 'the matter in issue' is directly and substantially in issue in the previously instituted suit. So, what is decisive for Section 10 to operate is not identity of one or two issues, as stated in Shaw Wallace & Co. v. BholaNath, AIR 1975 Cal 411 (see para 10). This view was taken by referring to a judgment of Sir Ashutosh Mukherjee in Bepin Behari v. Jogendra, AIR 1917 Cal 248, where it was stated that the expression 'the matter in issue' has reference to the entire subject in controversy between the parties, and is not equivalent to 'any of the questions in issue'. The same view has been expressed in Jai Hind Iron Mart v. Tulsi Ram, AIR 1953 Bom 117 by Chagla, C. J. (as he then was) by stating that the requirement of Section 10 is that the field of controversy between the parties in the two suits must be the same. As per the decision in Ranchhoddas v. Ram Chandra Rao, AIR 1963 Madh Pra 59, where the causes of action and reliefs are different, it could not be said that the matter in issue between the two suits in question is directly and substantially the same. One of the tests laid down in this connection in Jinnat Bibi v. Howrah Jute Mills, AIR 1932 Cal 751, is that the final decision in the previous suit must be such which would operate as res judicata in the subsequent suit.

5. 'On the touchstone of above tests, let it be seen whether the matter in issue in the two proceedings at hand is directly and substantially the same. As already noted, identity of one or two issues is not enough in this regard. What has to be seen is whether the field of controversy is the same. The controversy in T.S. No. 5/71 is related to the share of the parties in the property of late Kedar Bhowmick. The eviction suit has, however, nothing to do with the same. Of course, whether the suit is maintainable at the behest of the plaintiff alone is different matter, and has to be decided by the trial Court to which effect issue No. 4 has already been framed. This apart, whether defendant No. 2 could be evicted without a notice of ejectment being issued by all the heirs of Kedar Bhowmick has also to be adjudicated by the trial Court for which purpose issue No. 5 has been framed. But these issues do not show if the subject matter of controversy in the two suits are even substantially the same. Mere

identity of the schedules in the two cases, or even the identity of the parties, would not do for staying a suit under Section 10. The causes of action and relief sought in the two proceedings are apparently different. It cannot also be said that any decision in T. S. No. 5/71 would operate as res judicata in the present suit inasmuch as the extent of share of the plaintiff in the property of Kedar Bhowmick, which is the subject matter of the partition suit, has no bearing with the eviction suit. It may be repeated that it is a different matter if the eviction suit were to fail (if at all) on the ground that the plaintiff is not the absolute owner of the property, or that other heirs of Kedar Bhowmick had not joined in issuing the notice of eviction. That has, however, nothing to do with the extent of share of the plaintiff in the property.

6. The view by the learned trial Court has, therefore, to be regarded as not tenable in law. The same has affected his exercise of jurisdiction and permits this Court to interfere sitting in revision. As such the impugned order ms set aside, the petition is allowed and the learned trial Court is directed to proceed with the suit.

7. The little delay in delivery of the judgment has occurred due to Christmas holidays which intervened after hearing was concluded.


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