Gopilal vs Nagjiram

V.R. Nevaskar, J.—The only question involved in this revision petition is as regards he applicability of Section 10 of the CPC Code.

The Petitioner Gopilal filed Civil Suit No. 3 of 1960 in forma pauperis. The application for permission to sue in forma pauperis was submitted on 4-9-1958. His application for permission to sue in forma pauperism was allowed in the year 1960 and thereupon it was registered as Civil Suit No. 3 of 1960. In this suit the Plaintiff claimed possession of agricultural land measuring 28-12 acres assessed to the revenue of Rs. 81-15-0 situated in the village Niranjanpur, Tahsil Indore as also for possession of a house and certain movables. The suit was tiled against Nagjiram and Shaligram. The claim was based on the allegation that the entire properly had been in the possession of his mother''s mother Anandibai till her death upto 4-9-1956 and that he is the nearest heir to the property left by her on her death. All the properties including the land, house and movables were alleged to be in the possession of Nagjiram and Saligram at the date of the institution of the suit. He. therefore claimed possession of all these properties.

The suit was resisted by the Defendants The main defence raised as regards the agricultural land was that Anandibai was indebted to them to the tune of Rs. 6000/- and that during her life-time Anandibai had executed an agreement of sale of the land in their favour for discharging that debt; that during her life-time an application was submitted to the Collector for permission to sell and the same had to be continued by her grand-son Gopilal but that he refused to do so. They therefore brought a suit No. 129 of 1959 for specific performance of the contract. The present plaint for possession of land therefore was incompetent. As regards the other property they denied possession of the same. As indicated in the written statement filed by Nagjiram End Saligram, during the pendency of the application for permission to sue in forma pauperis, Civil Suit No. 129 of 1959 was filed on 20-4-1959 by them aginst Gopilal for specific performance of the contract alleged to have been entered by Anandi-bai in their favour.

After the written statement was filed by Gopilal in Civil Suit. No. 129 of 1959 he submitted an application in that suit u/s 10 Code of CPC for stay of civil suit No. 129 of 1959 filed by Nagjiram and Saligram for specific performance. This application was resisted by them on their behalf. Reliance was placed upon the decision reported in AIR 1934 Pri Cou 235 Pir Bux v. Mohammad Tahar, for contending that it is their suit which should be proceeded first and not the suit for the suit for possession filed by Gopilal. On consideration of this application the trial Court observed:

Ordnarily this suit ought to have been stayed u/s 10 Code of CPC because in case, the Plaintiff of this suit succeeds in the prior suit for ejectment and his plea of agreement of sale in his favour is upheld naturally that finding would operate as res-judicata in this subsequent suit.

He however felt a difficulty which according to him was peculiar to the suits of the category as the present ones. The suggestion was that in case the prior suit for possession is dismissed on the ground that there had been an agreement for sale and later on in the second suit the Court comes to the conclusion that specific performance ought not to be granted on certain grounds then in that case the Plaintiff in the prior suit would be required to bring a fresh suit. He felt that the only course in such a situation open to him was to act in exercise of his inherent powers and to stay the prior suit. In view of this conclusion, to which the learned trial Court reached, it rejected the application submitted by Gopilal for staying the suit for specific performance filed by the opponents.

The present revision petition is directed against that order.

On the facts as stated above it is clear that the learned trial Court did not properly appreciate the provision of Section 10 Code of CPC That section provides:

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 like jurisdiction, or before the Supreme Court.

It is clear from the wording of this section that where the conditions for the applicability of the power of stay as indicated in the section exist the Court is bound to stay the suit vide ILR 43 Cal 144 Padamsee Narainjee v. Lakhamsee Raisee and AIR 1916 Nag. 70, (71) Gopikishan v. Padamraj. For the applicability of the section one of the conditions is that there should be a previously instituted suit. In (he present case an application for permission to sue in forma pauperis had been instituted by Gopilal on 4-9-1958 whereas the suit for specific performance of contract to sell land was instituted by Nagjiram and Saligram on 20-4-1959. The application for permission to sue in forma pauperis was allowed in 1960. Under these circumstances the question is which is the previously instituted suit? This raises the question when the suit is instituted in a case in which what is initially filed is an application for permission to sue in forma pauperis. In AIR 1955 259 (Nagpur) , it has been held by the Division Bench consisting of Hidayatullah C.J., and Mangalmurti J., that a suit commences for the purpose of Order 39 Rule 1 read with Section 26 of the CPC with making of an application for permission to sue in forma pauperis. This view is based upon the provision of Order 33 Rule 1 and 8C.PC as also on the terms of Order 33 Rule 2 Code of CPC Under Order 33 Rule 2 Code of CPC every application for permission to sue as a pauper has to contain the particulars required in regard to the plaints in suits. If under Rule 7 the Court grants the application for permission to sue in forma pauperis, it has under Rule 8 to number and register the same as a suit and the initial application for permission to sue in forma pauperis itself becomes the plaint. Looked at from another point of view when an application for permission to sue in forma pauperis is filed which is later on granted then the plaint is deemed to have been presented not on the date when the application is granted but on the date the application was initially presented. This is clear from the decision of the Privy Council in 9 Moor''s Indian Appeals 66 Naragunty Lutchmeedavamah v. Vengama Naidoo and of the Bombay High Court in Yasoo Vithoba Vs. Babubai, .

The next condition for the applicability of Section 10 Code of CPC is that all the suit should be between the same parties or between parties under whom they or any of them claim litigating under the same title. This is clearly satisfied in this case.

The third condition is that the matter in issue in the subsequent suit should also be a matter directly and substantially in issue in the previous suit. It is clear from the examination of the plaints in the two suits that the matter regarding the existence of a valid contract capable of being specifically enforced against Gopilal and the propriety of this enforcement is directly and substantially in issue in Civil Suit No. 129 of 1959. This very matter is directly and substantially in issue in the earlier suit since the claim based on the allegation as to the existence of contract by Anandibai forms the principal defence as regards Gopilal''s claim for possession of the land in suit. Although besides the claim for possession of land there is further claim for house and immoveables also in Gopilal''s suit and there is the issue as to possession of these latter items of property of Nagjiram and Saligram. But as held in AIR 1942 Bombay 314 Trikamdas Jethabhai v. Jivraj Kalianji, the real question is whether the matter in issue in the subsequent suit is directly and substantially in issue in the earlier suit. The true test for determining whether the matter is directly and substantially in issue in the previous suit is that in case the decision is given in the first suit determining the issue whether that would operate as resjudicata for the subsequent suit. Looked at from this point of view the Court in the previous suit while dealing with the defence set up by the opponents will have to deal not only with the question regarding existence of contract to sell but also regarding propriety of its performance and any decision to which it may reach is bound to operate as resjudicata in this latter suit.

It is, therefore, clear that all the conditions for the applicability of Section 10 Code of CPC exist for staying the present suit and the Court had therefore no option but to act in accordance with the provision of Section 10 Code of CPC The difficulty with it felt is hardlyreal. The refusal on the part of the Court below therefore to stay the present suit involves material irregularity in the exercise of its jurisdiction.

The petition is therefore allowed and Setting aside the order passed by the Court below refusing to stay the present suit it is directed that the same should be stayed untill the disposal of civil suit No. 3 of 1960.

The Petitioner is entitled to his costs of this revision petition from the opponents.