Case Note & Summary
The petitioner, Dnyanoba Balbhim Salunke, filed a writ petition challenging an order dated 24/07/2013 passed by the Joint Civil Judge, Junior Division, Ambejogai, which stayed his suit RCS No.354/2012 under Section 10 of the Code of Civil Procedure, 1908 (CPC). The respondent, Sarjerao Dhondiba Salunke, had previously filed RCS No.254/2011 against the petitioner and his mother seeking a simplicitor declaration and injunction regarding Gat No.580 admeasuring 72R, alleging interference with his peaceful possession. The petitioner then filed RCS No.354/2012 for possession of the same property, claiming he had been unlawfully dispossessed. The respondent moved an application under Section 10 CPC to stay the later suit, arguing that the matter in issue was directly and substantially the same as in the earlier suit. The trial court allowed the application, staying the petitioner's suit. The petitioner challenged this order in the High Court. The High Court examined the scope of Section 10 CPC, which prohibits the trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The Court noted that the earlier suit sought only a declaration and injunction, not possession, while the later suit specifically sought possession. Since the issue of possession was not raised in the earlier suit, the matters in issue were not the same. The Court held that Section 10 CPC did not apply and set aside the impugned order, allowing the writ petition. The Court directed the trial court to proceed with RCS No.354/2012 in accordance with law.
Headnote
A) Civil Procedure Code - Stay of Suit - Section 10 CPC - Matter in Issue - The issue was whether a later suit for possession can be stayed under Section 10 CPC when an earlier suit between the same parties over the same property seeks only a simplicitor declaration and injunction. The Court held that since the earlier suit did not involve the issue of possession, the matter in issue was not directly and substantially the same, and therefore Section 10 CPC did not apply. The impugned order staying the later suit was set aside. (Paras 2-8)
Issue of Consideration
Whether a subsequently instituted suit for possession can be stayed under Section 10 CPC when a previously instituted suit between the same parties over the same property seeks only a declaration and injunction, not possession.
Final Decision
Writ petition allowed. Impugned order dated 24/07/2013 passed by Joint Civil Judge, Junior Division, Ambejogai below Exh.23 in RCS No.354/2012 is quashed and set aside. The trial court is directed to proceed with RCS No.354/2012 in accordance with law. Rule made absolute accordingly.
Law Points
- Section 10 CPC applies only when matter in issue is directly and substantially in issue in previously instituted suit
- same parties
- same title
- and same relief
- simplicitor suit for declaration and injunction does not involve issue of possession
- so later suit for possession is not barred
Case Details
2014 LawText (BOM) (03) 19
Writ Petition No.9382 of 2013
Mr. T.G. Gaikwad for petitioner, Mr. Vivek Bhavthankar for respondent
Sarjerao Dhondiba Salunke
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Nature of Litigation
Writ petition challenging order staying suit under Section 10 CPC
Remedy Sought
Petitioner sought setting aside of order dated 24/07/2013 staying his suit RCS No.354/2012
Filing Reason
Trial court stayed petitioner's suit for possession under Section 10 CPC on ground that earlier suit for declaration and injunction involved same property
Previous Decisions
Trial court allowed respondent's application below Exh.23 and stayed RCS No.354/2012 vide order dated 24/07/2013
Issues
Whether Section 10 CPC applies to stay a subsequently instituted suit for possession when a previously instituted suit between same parties over same property seeks only declaration and injunction, not possession.
Submissions/Arguments
Petitioner argued that the earlier suit was only for declaration and injunction, not possession, so the matter in issue was not directly and substantially the same.
Respondent argued that both suits involve the same property and parties, so Section 10 CPC applies.
Ratio Decidendi
Section 10 CPC applies only when the matter in issue in the later suit is directly and substantially in issue in the previously instituted suit. Since the earlier suit sought only a declaration and injunction and did not involve the issue of possession, the later suit for possession is not barred under Section 10 CPC.
Judgment Excerpts
The issue before this Court is that the respondent filed RCS No.254/2011 ... The suit was with reference to the same survey number, same gat no.580 admeasuring 72R.
By the said RCS No.254/2011, the respondent claimed ... that the petitioner is interfering with the peaceful possession ... and therefore the respondent has sought a simplicitor declaration and injunction against the petitioner.
The petitioner states that he has filed RCS No.354/2012 ... contending therein that the same Gat No.580 admeasuring 72R has been unlawfully possessed by the respondent ... the petitioner has prayed that the respondent be evicted and the same suit property be handed over to the petitioner.
With the aid of Section 10 of the CPC, the respondent sought staying of RCS No. 354/2012 ... on the ground that the cause of action involves the same Gat No., the same piece of land, the same litigating parties ...
By the impugned order dated 24/07/2013, the learned Court came to a conclusion that the case of the petitioner herein is squarely covered by, 'matter in issue is directly and substantially in issue in a previously instituted suit between the same parties.'
Procedural History
Respondent filed RCS No.254/2011 for declaration and injunction. Petitioner filed RCS No.354/2012 for possession. Respondent filed application below Exh.23 under Section 10 CPC to stay RCS No.354/2012. Trial court allowed application on 24/07/2013. Petitioner filed writ petition challenging that order.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Section 10
