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J.C. Batra Etc. Vs. Radhey Shyam - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 383 of 1974
Judge
Reported in1975RLR164
ActsCode of Civil Procedure (CPC), 1908 - Sections 10
AppellantJ.C. Batra Etc.
RespondentRadhey Shyam
Advocates: S.N. Mehta and; G.C. Lal, Advs
Cases ReferredIn Manohal Lal Chopra v. Rat Bahadur Rai Raja Seth Hiralal
Excerpt:
- - taking into consideration the fact that a considerable time is likely to be taken in deciding the suit of radhe shyam not only in the trial court but at the appeal stage as well, in the event of his not succeeding would further cause unnecessarily delay in the disposal of the present suit......in the suit filed by him and a declaratory decree is granted that he is in possession of the suit premises having acquired adverse possession and a permanent injunction issued against the petitioners, restraining them from interfering with his peaceful possession, the contentions raised by the petitioners in their suit would be res- judicata by reason of the decision of the prior suit in as much as they would not be entitled to possession. in the instant case the position, however, is slightly different. in case if radhe shyam does not succeed, the suit filed by the petitioners for the recovery of damages would not be liable to be decreed unless the quantum of damages is satisfactorily proved on the record, though decree for possession claimed in the present suit may follow the.....
Judgment:

Prithvi Raj, J.

(1) This revision petition is directed against the order dated 17th December, 1973, passed by Shri K.S. Gupta, Commercial Sub Judge, whereby he stayed the suit of the petitioners on an application filed by the respondents under section 10 of the Code of Civil Procedure, holding that because of pendency of earlier suit filed by Radhey Shyam respondent against the petitioners pending in the Court of Shri B.B. Gupta Senior Sub-Judge, involving directly and substantially the same matters especially regarding tide of the premises in question, the present suit was liable to be stayed.

(2) Respondent Radhey Shyam filed a suit against the petitioners for declaration that he is the owner in possession of the premises bearing No. 5. B Radhey Puri, Delhi by virtue of his having adverse possession for a period more than 12 years against the petitioners on allegation that he occupied the land measuring about 100 square yards in the year 1959 on which thereafter he constructed a boundary wall and was also paying the house rent of the premises in question. He also prayed for the grant of a permanent injunction against the petitioners restraining them from interfering with his peaceful possession over the property in question.

(3) The petitioners traversed the claim of Radhey Shyam in their written statement stating that their father had purchased the plot in question from M/S International Land and Finance Ltd., Lajpat Nagar, Delhi, on the basis of sale-deed dated 21st May, 1954, and that actual possession of the premises was also taken by their father. A boundary wall, the petitioners contended, was constructed by their father on the two sides of the plot and on the other two sides there were walls of the other buildings. The possession of Radhe Shyam was said to be of about three years duration who occupied the premises illegally. The petitioners alleged that they had asked him to vacate the plot to which he agreed but subsequently he turned round and asked them to sell the plot to him. The petitioners having refused to sell the plot in his favor, Radhe Shyam chose to file the suit which is pending in the Court of Shri B.B. Gupta Senior Sub Judge.

(4) The petitioners subsequently filed the present suit in the Court of Shri K.S. Gupta, Commercial Sub Judge, against Radhe Shyam, his son Banwari Lal and his wife Kishan Devi, for possession of the premises in question besides claiming damages in the sum of Rs. 3,600.00 at the rate of Rs. 100.00 per month for three years preceding the filing of the suit, reiterating the pleas taken in defense of the suit filed by Radhe Shyam. The petitioners in their suit averred that the possession of Radhey Shyam, his son and his. wife was that of illegal tresspassers unauthorised and illegal.

(5) By his impugned order Shri K.S. Gupta held that the allegation made by Radhey Shyam in the suit filed by him showed that he claimed himself to be the owner in possession of the premises in question and that whole issue that will arise in the present suit will be as to whether the plaintiffs are the owners of the premises in suit or not. In the circumstances, he held that from reading plaints in the two suits and the written statements filed therein it is apparent that the issue regarding title of the premises was the main issue and accordingly in his opinion the matter involved in both the suits was directly and substantially the same. Consequently, he stayed the suit sine die.

(6) Section 10 of the Civil Procedure Code envisages - 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 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 the jurisdiction, or before the Supreme Court.

(7) The provisions contained in section 10 Civil Procedure Code are weather-beaten and have been considered in a number of cases. It will, thereforee, be relevant to note a few of them.

(8) In Union of India v. Umesh Chandra Gupta and others : AIR1963All601 , it was observed that the trial of any suit could only be stayed if the suit has been previously instituted between the same parties. and such suit or appeal is pending and further that the relief climed in the second suit could have been granted in the first suit. In M/s. C. Rama and Co. and others v. M/s Modern Motor Workshop, , it was held that the test whether the previously instituted suit and a subsequently instituted suit are 'parallel' is that if the first was determined, the matters raised in the second suit would be res-judicata by reason of the decision of the prior suit. In Jai Hind Iron Mart v. Tulsiram Biagwandas : AIR1953Bom117 , a Division Bench of Court while considering the provisions of section 10 Civil Procedure Code observed that there must be an identity of the subject matter and that the field of the controversy between the parties in the two suits must also be the same but the identity contemplated and the field of controversy contemplated should not be identical and the field of controversy must be substantially the same.

(9) It is no doubt true that if Radhey Shyam succeeds in the suit filed by him and a declaratory decree is granted that he is in possession of the suit premises having acquired adverse possession and a permanent injunction issued against the petitioners, restraining them from interfering with his peaceful possession, the contentions raised by the petitioners in their suit would be res- judicata by reason of the decision of the prior suit in as much as they would not be entitled to possession. In the instant case the position, however, is slightly different. In case if Radhe Shyam does not succeed, the suit filed by the petitioners for the recovery of damages would not be liable to be decreed unless the quantum of damages is satisfactorily proved on the record, though decree for possession claimed in the present suit may follow the dismissal of the suit of Radhe Shyam. Taking into consideration the fact that a considerable time is likely to be taken in deciding the suit of Radhe Shyam not only in the trial Court but at the appeal stage as well, in the event of his not succeeding would further cause unnecessarily delay in the disposal of the present suit. In the circumstances it would be proper if the two are suits tried together and disposed of by a single judgment.

(10) The Court has inherent right to order consolidation of suits in appropriate cases. In M/s. Bokaro & Ramgur Ltd. v. State of Bihar and others : AIR1973Pat340 . it was observed that in deciding whether two suits should be consolidated or not the whole question is whether or not in the long run it will be expeditious and advantageous to all concerned to have the suits tried together. Further where it appears that there is sufficient unity and similarity in the matter is issued in the two suits to warrant their consolidation, it was observed that it would be a fit case for consolidation. In Manohal Lal Chopra v. Rat Bahadur Rai Raja Seth Hiralal : AIR1962SC527 , their Lordships of the Supreme Court observed that section 151 of the Civil Procedure Code itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement it was not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.

(11) A perusal of the plaint and the written statement in the two suits show that the issues in the two suits are the same and the fact that the parties are practically the same except that in the present suit. The petitioners have imp leaded the wife and the son of Radhey Shyam as co-respondents on the allegation that they along with Radhe Shyam are in unlawful occupation of the suit premises, without doubt show that there is sufficient unity or similarity in the matter in issue in the two suits. The case of Radhe Shyam respondent is that he has perfected his adverse possession by lapse of time. The allegation of the petitioners in the present suit is on a similar basis, namely, that Radhe Shyam, his wife and his son had gone into unlawful possession of the premises in question. The main question for determination, thereforee, is whether Radhe Shyam, his wife and son illegally occupied the suit premises about three years back prior to the filing of the present suit or as alleged by Radhe Shyam he had occupied the same in the year 1950. In case of the rival contentions and the fact that in the present suit possession as also damages for occupation, I am of the opinion that it would be in the interest of justice that the two suits are tried together and disposed of by the same Court.


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