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Munilal Vs. Sarvaieet - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 283 of 1981
Judge
Reported inAIR1984Raj22; 1982()WLN756
ActsCode of Civil Procedure (CPC) , 1908 - Sections 19
AppellantMunilal
RespondentSarvaieet
Appellant Advocate S.N. Sharma, Adv.
Respondent Advocate B.R. Arora, Adv.
Cases ReferredGope v. United Dairies
Excerpt:
civil procedure code - section 10--provisions of section 10 are mandatory--no request made for stay of subsequent suit during trial of suit--held, objection be deemed as waived and it cannot be raised in appeal;the provisions of section 10 c.p.c. are mandatory and the trial of -a subsequently instituted suit is bound to be stayed if any party makes a request before the court trying that a previously instituted suit is pending determination either in the trial court, or the first appeal or second appeal arising therefrom is pending for decision.;as no objection under section 10 c.p.c. to the trial of the subsequently instituted suit was taken until the termination of the proceeding in the suit, the objection must be deemed to have been waived by the petitioner and it is not open to him to.....orderdwarka prasad, j. 1. an interesting question regarding the interpretation of section 10. civil p. c. arises in this revision petition as to the meaning and contents of the expression 'the trial of any suit'.2. the undisputed facts are that the landlord non-petitioner filed a suit for ejectment against the petitioner tenant on 6-12-1977 in the court of munsif. sri ganganagar which was transferred to the court of additional munsif, sri ganganagar. in that suit, a decree for ejectment and for recovery of arrears of rent was passed against the petitioner on 27-2-1981. the petitioner preferred an appeal against the aforesaid decree and the said appeal is still pending in the court of district judge. sri ganganagar.3. earlier to the filing of the suit for ejectment the petitioner had filed.....
Judgment:
ORDER

Dwarka Prasad, J.

1. An interesting question regarding the interpretation of Section 10. Civil P. C. arises in this revision petition as to the meaning and contents of the expression 'the trial of any suit'.

2. The undisputed facts are that the landlord non-petitioner filed a suit for ejectment against the petitioner tenant on 6-12-1977 in the court of Munsif. Sri Ganganagar which was transferred to the court of Additional Munsif, Sri Ganganagar. In that suit, a decree for ejectment and for recovery of arrears of rent was passed against the petitioner on 27-2-1981. The petitioner preferred an appeal against the aforesaid decree and the said appeal is still pending in the court of District Judge. Sri Ganganagar.

3. Earlier to the filing of the suit for ejectment the petitioner had filed a suit on 28-11-1977 in the Court of Munsif, Sri Ganganagar seeking a declaration to the effect that the petitioner-tenant could not be dispossessed from the premises in dispute without the process of law. In that suit, the tenant petitioner claimed that he was a tenant of two rooms and a courtyard on a monthly rent of Rs. 40. This suit has also been transferred to the Court of Additional Munsif. Sri Ganganagar and is still pending in that court. The petitioner filed an application, in the Court of the learned District Judge. Sri Ganganagar in the appeal pending against the decree for ejectment and recovery of arrears of rent stating that as the questions for determination in that appeal are the same as are required to be determined in the civil suit filed by the petitioner and which is pending in the Court of Additional Munsif. Sri Ganganagar, the proceedings in the appeal should be stayed until the decision of the previously instituted suit. The learned District Judge by his order dated July 15. 1981 agreed to stay the proceedings in the appeal relating to ejectment and recovery of arrears of rent, but he imposed a condition upon the tenant-petitioner that he should deposit all the over-due rent within 15 days of the order.

4. Aggrieved by the aforesaid order passed by the learned District Judge, Sri Ganganagar the tenant petitioner has filed this revision petition and it has been urged by his learned counsel that while staying the proceedings under Section 10, C.P.C. the appellate Court acted without jurisdiction in imposing any condition regarding payment of arrears of rent. On the other hand, learned counsel for the landlord non-petitioner contends that the proceedings in the ap-peal could not have been staved at all as the trial of the suit was over when the decree for ejectment and arrears of rent was passed by the trial court and an order staying the proceedings in the appeal could not have been missed at all under Section 10. C.P.C.

5. Section 10. Civil P. C. which I am concerned in this revision petition, runs as under :--

'10. 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 whomthey 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.

6. What Section 10 prohibits is the 'trial of any suit' when the matter in issue in that suit is also directly and substantially in issue in a previously instituted suit between the same parties. So far as the expression 'previously instituted suit' is concerned it presents no difficulty, as it is well settled that 'suit' includes an 'appeal' and the trial of a subsequently instituted suit will have to be stayed even during the pendency of on appeal or second appeal arising out of 'previously instituted suit. This view was taken as early as in the year 1931 by their Lordships of the Judicial Committee of the Privy Council in S. P. A. Annamalay Chtetty v. B A. Thornhill. AIR 1931 PC 263. In that case during the pendency of an appeal against the decree passed in a previously instituted suit, a second suit was filed on the same cause of action between the same parties. It was held that the proper course for the court, in which the second suit was instituted, was to adjourn the action pending the decision of the appeal in the earlier suit. Their Lordships observed in that case that where an appeal lies, the finality of the decree is qualified by the decree that may be passed in such appeal and the decree is not final in the sense that it will torm 'res judicata' as between the same parties. Their Lordships observed in the aforesaid case as under :--

'Their Lordships regret that the second action was not adjourned pending the decision of the appeal in the first action, as that would have simplified procedure and saved expense.'

Thus, it is clear from the aforesaid decision of their Lordships of the Privy Council that the underlying principle behind the provisions contained in Section 10. C.P.C. is that they have been introduced with a view to simplify the procedure and save expense.

7. The same view was expressed by their Lordships of the Calcutta High Court in Smt. Jinnat Bibi v. Howrah Jute Mill Co. Ltd.. AIR 1932. Cal 751, where a second appeal arising out of the previously instituted suit was pending and an application for stay of the proceedings in the subsequently instituted suit was moved. It was held that the provisions of Section 10 were mandatory and there is no discretion left in the courts in respect of the stay of suits when circumstances were such as to invoke the operation of Section 10.

8. A similar view was taken by the Nagpur High Court in Krishnarao Nam-deorao v. Shridhar Ramchandra Kale. AIR 1947 Nag 154 where during pendency of an appeal arising out of a previously instituted suit a second suit was filed. It was held that for the applicability of Section 10. C.P.C. the test was whether on a final decision being reached in the previously instituted suit such decision would operate as res judicata in the subsequent suit. It was observed that Section 10 has no reference either to the subject matter of the suit or to the cause of action, but to the questions involved in the suit.

9. In Rai Spinning Mills Amritsar v. A. G. King Ltd. Excelsior Mills. AIR 1954 Punjab 113 during the pendency of the first appeal arising out of a previously instituted suit, a second suit was filed in which a plea for staying the suit was taken. It was held that the word' 'suit' included an 'appeal' and the proceedings in the subsequently instituted suit should be stayed, so long as the matter in issue in the two suits are directly and substantially the same. In this view of the matter, the legal position, is absolutely clear that the trial of the subsequently instituted suit is bound to be stayed during the pendency of the previously instituted suit or even during the pendency of an appeal or a second appeal arising therefrom, provided the questions arising out in the two suits or some of them are directly and substantially the same,

10. However, in Gangaprasad v. Mt Banaspati. AIR 1937 Nag 132. Vivian Bose. J., as he then was held that the provisions of Section 10 though mandatory could be waived with the consent of the parties. It is no doubt true that the institution of a second suit is not barred by Section 10. C.P.C. but all that is prohibited is the trial of the subsequently instituted suit, in case the questions involvedin the two suits are substantially the same. Thus Section 10 provides a rule of procedure and although it is mandatory in the sense that if a party, applies for staying the trial of the subsequently instituted suit, during the pendency of the previously instituted suit or an appeal or second appeal arising therefrom, then the court has no alternative but to stay the proceedings in the subsequently instituted suit, as soon as it comes to the conclusion that the questions involved in the two suits are substantially the same. As their Lordships of the Privy Council have pointed out the basis for engrafting the provisions of Section 10. C.P.C. is that procedure should be simplified and unnecessary expenses should be saved. The parties should not be vexed twice over in respect of the trial of the same issues. If the decision in one suit would have the effect of being 'res judicata' in respect of the issues arising in the subsequently instituted suit, then it would be unnecessary to proceed with the trial of the very same issues in subsequently instituted suit. However, as it is a rule of procedure Vivian Bose J. held in Gangaprasad's case that it was open to any one of the parties to waive their rights to have the other suit staved and if it is done, that party could not afterwards turn round and challenge the validity of the proceedings in the second suit. As a matter of fact, neither Section 10 nor any other provision in the Civil P. C. provides any penalty for proceeding with the trial of the subsequently instituted suit, in spite of the prohibition contained in Section 10. C.P.C. and as such it is apparent that the irregularity in continuing the proceedings in the subsequently instituted suit could not he fatal but would be curable under Section 99. Civil P. C. or the principles underlying that section.

11. If the subsequently instituted suit would have been pending, the petitioner was undoubtedly entitled to an order under Section 10. C.P.C. staying the trial of that suit on the ground that the previously instituted suit or an appeal or second appeal arising therefrom was still pending and in which identical questions were in issue. In that event, the court seized of the subsequently instituted suit could not have proceeded with the trial of that suit after such an order under Section 10. C.P.C. would have been passed. But the situation in the present case is that the trial of the subsequently instituted suit took place without anyobjection on the part of the petitioner, who was the defendant in that suit; and that suit was heard and decided by the trial Court and what is now Bending is an appeal arising out of the subsequently instituted suit and at this stage it is desired by the petitioner that the proceedings in that appeal should be staved. The question, therefore, arises as to whether the appellate Court could be prohibited from proceedings with the hearing of the appeal arising out of the subsequently instituted suit on the ground that the previously instituted suit was still pending and the trial of the subsequently instituted suit was prohibited by the provisions of Section 10. C.P.C. Thus, the decision of this case would turn upon the question as to what is the meaning of the expression 'the trial of any suit', occurring in Section 10. C.P.C.

12. In Harish Chandra Baipai v. Triloki Singh AIR 1957 SC 444 the word 'trial' came up for interpretation with reference to the provisions of Section 90. Re-presentation of the People Act. 1951. Their Lordships observed as under in the aforesaid case fat p. 453) :--

'The point for decision is as to what word 'trial' in Section 90 (2) means. According to the appellants, it must be understood in a limited sense, as meaning the final hearing of the petition, consisting of examination of witnesses, filing documents and addressing arguments. According to the respondent, it connotes the entire proceedings before the Tribunal from the time that the petition is transferred to it under Section 86 of the Act until pronouncement of the award. While the word 'trial' standing by itself is susceptible of both the narrow and the wider senses indicated above, the question is what meaning attaches to it in Section 90(2), and to decide that, we must have regard to the context and the setting of the enactment. Now, the provisions of the Act leave us in no doubt as to in what sense the word is used in Section 90 (2). It occurs in Chapter III which is headed 'Trial of election petitions'. Section 86(4) provides that if during the course of the trial any member of a Tribunal is unable to perform his functions, the Election Commission is to appoint another member, and thereupon the trial is to be continued. This provision must apply to retirement or relinquishment by a member, even before the hearing commences, and the expression 'during the course of the trial'

must therefore include the stages prior to the hearing. Section 88 again provides that the trial is to be held at such places as the Election Commission may appoint. The trial here must necessarily include the matters preliminary to the hearing such as the settlement of issues, issuing direction and the like. After the petition is transferred to the Election Tribunal under Section 86, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement: issues have to be settled. If 'trial' for the purpose of Section 90 (2) is to be interpreted as moaning only the hearing, then what is the provision of law under which the Tribunal is to call for written statement and settle issues? Section 90 (4) enacts that when an election petition does not comply with the Provisions of Section 81. Section 83 or Section 117, the Tribunai may dismiss it, But if it does not dismiss it it must necessarily have the powers to order rectification of the defects arising by reason of non-compliance with the requirements of Section 81, Section 83 or Section 117. That not being a power expressly conferred on it under Section 92 can only be sought under Section 90 (2), and resort to that section can be had only if trial is understood as including proceedings prior to hearing. Section 92 enacts that the Tribunal shall have Dowers in respect of various matters which are vested in a Court under the Civil Procedure Code when trying a suit, and among the matters set out therein are discovery and inspection, enforcing attendance of witnesses and compelling the production of documents, which clearly do not form part of the hearing but precede it In our opinion, the provisions of Chapter III read as a whole, clearly show that 'trial' is used as meaning the entire proceedings before the Tribunal from the time when the petition is transferred to it under Section 86 until the pronouncement of the award.'

13. In Om Prabha Jain v. Gian Chand. AIR 1959 SC 837 the meaning of the word 'trial' again came up for consideration before their Lordships of the Supreme Court with reference to Section 98, Representation of the People Act, 1951, wherein it was observed as under :--

'It is said that the word 'trial' in Section 98 means that stage of the trial where evidence is tendered and arguments are addressed. Therefore, it is contended an order dismissing a petition under the powers contained in Section 90 (3) is not an order under Section 98 and it is consequently not appealable...... We see no justification for this view. An order made under the powers contained in Section 90 (3) brings to an end the proceedings arising out of a petition after it is made, nothing more remains for the Election Tribunal to try or do in respect of that petition. Therefore, it would appear that it is made at the conclusion of the proceedings before the Tribunal. It follows that such an order is made at the conclusion of the trial by the Tribunal [or, as will be presently seen the sole duty of the Tribunal is to try the petition the proceeding before it is the trial before it. For the same reason it would be impossible to say that the order was made before the commencement of the trial of the petition by the Tribunal. That, would be entirely against the whole scheme of the Act which we now proceed to consider.Chapter III of Part VI is headed 'Trial of Election Petitions'. It consists of Sections 86 to 107 and covers the entire ground from the moment an election petition comes to an Election Tribunal till the final order of the Tribunal terminating the proceeding arising out of the petition before it. The first section. Section 86, provides that if the Election Commission does not think fit to dismiss under Section 85 the petition which has to be filed with it in the first instance, it shall refer the petition 'for trial' to an Election Tribunal constituted by it for the purpose. Therefore, it would seem that the sole duty of an Election Tribunal is to try an election petition referred to it. It is an ad hoc body created under Section 86 for this purpose, only. When it passes an order which closes the proceedings before it arising out of an election petition, it must be deemed to have tried the petition and passed the order at the conclusion of such trial. It would no less be so when it decides a matter before it and thereby brings the proceedings to a close on one of the several issues raised and does not decide the other issues. In such a case it has made the order after trial of that issue for clearly it cannot make an order on any issue without trying it. It has therefore made the order at the conclusion of thetrial held by it. And for this purpose, it makes no difference that the issue tried is of the nature usually called as preliminary issue or that the Tribunal does or does not consider it necessary to try the remaining issues.

The same conclusion also follows from the other provisions of the said Chapter III of the Act some of which are hereinafter mentioned. Section 86(4) gives the Election Commission the power to fill a vacancy occurring in the office of a member of an Election Tribunal and upon the vacancy being so filled up 'the trial' of the petition shall be continued by the Tribunal as if the person appointed in the vacancy had been on the Tribunal from the beginning. Since it is conceivable that a vacancy may occur in the office of a member of a Tribunal long before the final hearing, that is to say the taking of the evidence and the commencement of the arguments, this section by providing that upon the vacancy being filled 'the trial' of the petition shall be continued must be taken as contemplating the proceedings prior to the final hearing also as trial. Under Section 88 an Election Tribunal may in its discretion sit 'for any part of the trial' at any place in the State in which the election had taken place. Here again the entire proceeding before the Tribunal from the reference to it by the Election Commission till the conclusion is being considered as the trial. Again under Section 89 the Election Commission may at any stage withdraw a petition pending before a Tribunal and transfer it 'for trial to another Tribunal' and 'that Tribunal shall proceed with the trial from the stage at which it was withdrawn' from the first Tribunal so here too the entire proceeding from the first reference to an Election Tribunal is being spoken of as the trial. Hence the contention of the learned counsel for the appellant that the trial mentioned in Section 98 is the stage in the proceedings in which evidence is taken and arguments are heard, is unfounded. That word in the other sections in this part of the Act clearly means the entire proceeding be-fore a Tribunal from the reference to it by the Election Commission to the conclusion. We find no reason to give it a restricted meaning in Section 98.

14. In Sujanbai Haribhau Kakde v-Motiram Gopal Saraf. AIR 1980 Bom 188the question as to the meaning of theexpression 'trial of the suit' occurringin Section 10. C.P.C. came up for consideration. A civil suit for permanent injunction restraining the defendants frominterfering with the cultivatory possession of the suit land was filed: whilethat suit was pending in the trial Court,the defendant in the earlier suit filedanother suit for permanent injunctionrestraining the defendant (plaintiffs inthe earlier suit) from interfering withthe possession of the disputed land. Anapplication for temporary injunctionwas filed and a temporary injunctionwas granted by the trial Court, whichwas confirmed by the appellate Courtand was challenged in revision petitionbefore the Bombay High Court. At therevisional stage, an application underSection 10, C.P.C. was filed on the groundthat the matters in issue in the subsequent suit are directly and substantiallyin issue in the previously instituted suitand both the suits were between thesame parties. A learned Judge of theBombay High Court following the earlier Bench decision in Senaii v. Pannaji.AIR 1922 Bom 276 held that Section 10 ofthe Code does not prevent the civilcourt, from passing orders on interimapplications and granting interlocutoryreliefs such as interim injunction or attachment before judgment andalso appointment of receiver. Itwas observed in that casethat what was prohibited was proceeding with the trial of the suit and thatthe word 'trial' which has not beendefined in the Code has to be construedin the light of the scheme of the Codeitself. The learned Judge of the BombayHigh Court took the view that the word'trial' has been used in Section 10 in the narrow sense as referred by their Lordshipsof the Supreme Court in Harish Chandra's case (AIR 1957 SC 444V namely,examination of witnesses filing of documents and hearing of arguments. Thus,it was held that the trial Court was competent to entertain an application forgrant of temporary injunction or appointment of receiver or attachment beforejudgment and pass orders in respectthereof in the later suit, although theearlier suit was pending

15. I may make it clear that I am not expressing any opinion in the present case as to whether the word 'trial' occurring in Section 10 should be construed in the narrower or the wider sense, as referred to by their Lordships of theSupreme Court in Harish Chandra's case, as it is not necessary for me to decide that question for the purposes of this case. It would suffice to say that even if the word 'trial' is construed in the wider sense applied by their Lordships of the Supreme Court in Harish Chandra's case, in respect of the trial of Election petitions and the same is made applicable to the interpretation of the expression 'trial of the suit' occurring in Section 10, C.P.C. yet the trial would necessarily end at the conclusion of the suit; and the termination of the proceedings in the trial court would be the culminating point where, the trial of the suit would naturally come to an end. In my view, the hearing of the appeal by the appellate Court cannot be considered as a part of the 'trial of the suit' for Purposes of Section 10. C.P.C. The expression 'trial' has been defined in Stroud's Judicial Dictionary. '(IV Edition) Vol. 5 at page 2827 as 'A trial is the conclusion. by a competent Tribunal, of questions in issue in legal proceedings, whether civil or 'criminal'. In Black's Law Dictionary. (IV Edition) 'trial' has been defined at page 1675 as 'A judicial examination, in 'accordance with law of the land, of 'a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has jurisdiction over it.' It has further been stated that 'it includes all proceedings from time when issue is joined or more usually, when parties are called to try their case in court to time of its final determination.' A detailed description of trial has been given by Earl Jowitt in his dictionary of English Law (IInd Edn.) Vol. 2 at page 1805, as under:--

'The pleadings are opened by counsel for the plaintiff and the case stated to the jury; after this the witnesses for the plaintiff are examined by his counsel, the cross-examination being generally conducted by the senior counsel for the defendant, if the defendant's counsel objects to any question or any document, all the defendant's counsel are entitled to be heard on the objection, and all the plaintiff's counsel on the other side, and the senior counsel for the defendant in reply and so if the plaintiff's counsel objects mutatis mutandis. If the plaintiff has evidence to rebut the issues of which the burden of proof lies on the defendant, he may either produce it at the same time as his other evidence, or reserve it until after the defendant has given affirmative evidence on the issue. At the end of the plaintiff's evidence, the defendant's counsel declares whether he will call witnesses: and if he does not the plaintiff's senior counsel sums up his evidence, and the defendant's senior counsel next addressed the Jury, and the Judge sums up. If the defendant's counsel calls evidence he immediately opens his case to the jury, and the witnesses are called and examined as in the plaintiff's case. The plaintiff is, in general, entitled to call witnesses to rebut the evidence of the defendant, if he has not already given all his evidence, which is more generally the case. Then the defendant's senior counsel sums up and the senior counsel for the plaintiff relies upon the whole case. The Judge then sums up. The verdict may be taken by the associate in the absence of the Judge.'

The expression 'trial or hearing of the action' occurring in the Legal Aid and Advice Act. 1949 came up for consideration in Gope v. United Dairies (London) Ltd. (1963) 2 All ER 194 and it was held that on a true construction of the aforesaid enactment, a dismissal of an action at the preliminary stage did not fall within the expression 'trial or hearing of the action' so as to entitle the defendant to costs. In my view, even if a wider interpretation is given to the expression 'the trial of the suit' occurring in Section 10, C.P.C. yet it cannot travel beyond the determination of the cause of action by the trial court. If the documents have been filed, witnesses' have been examined, arguments have been heard and judgment pronounced by the trial court, then it must be held that 'the trial of the suit' has come to an end. This is in consonance with the wider view, applied by their Lordships of the Supreme Court to the expression, 'trial' in the case of election petition, in Harish Chandra's case. The hearing of an appeal cannot be considered as a part of 'the trial of the suit'.

16. Thus, while holding that the provisions of Section 10, C.P.C. are mandatory and the trial of a subsequently instituted suit is bound to be stayed if any party makes a request before the Court trying that suit that a previously instituted suit is pending determination either in the trial court, or the first appeal or second anneal arising therefrom is pending for decision. But if the trial o'f the subsequently instituted suit has proceeded without any objection and the same has terminated with the deliver of thejudgment and the preparation of the decree of that court then Section 10, C.P.C. has no relevance because it only prohibits the 'trial of the suit' and no further. Following the dictum of Vivian BOSE J. in Gangaprasad's case (AIR 1937 Naff 132) as no objection under Section 10. C.P.C., to the trial of the subsequently instituted suit was taken until the termination of the proceedings in the suit the objection must be deemed to have been waived by the petitioner and it is not open to him to raise such an objection in the appeal arising out of the subsequently instituted suit.

17. Learned counsel for the petitioner may be right in submitting that as the provisions of Section 10, C.P.C. are mandatory, the court was not competent to impose any condition while staying the proceedings in the suit, but I refrain from expressing any opinion on this question. In my view, the trial of the subsequently instituted suit is over and the objection under Section 10. C.P.C. having been waived at the trial stage, the same could not be entertained by the first appellate court.

18. As a result of the foregoing discussion the order passed by the learned District Judge. Sri Ganganagar dated July 15, 1981 is set aside and it is held that the provisions of Section 10. C.P.C. are not attracted to the decision of the appeal arising out of a subsequently instituted suit. The application under Section 10. C.P.C. filed by the petitioner is dismissed. Learned District Judge. Sri Ganganagar is directed to proceed with the hearing of the appeal and to dispose of the same at an early date.

19. The revision petition is disposed of accordingly but the parties are left to bear their own costs of the proceedings in this Court.


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