Paminder Gujral & Ors. v. Kiranjit Gujral & Ors.

Delhi High Court · 19 Jul 2023 · 2023:DHC:5025

Chandra Dhari Singh

CS(OS) 3262/2012

2023:DHC:5025

civil appeal_dismissed Significant

AI Summary

The Delhi High Court held that pending probate proceedings and an earlier suit do not warrant stay of a partition suit under Section 10 or Section 151 CPC as the subject matters are not identical and inherent powers cannot override express statutory provisions.

Full Text

I.A. 5138/2018 in CS(OS) 3262/2012
HIGH COURT OF DELHI

Reserved on : 20th April, 2023 Pronounced on: 19th July, 2023

I.A. 5138/2018 in CS(OS) 3262/2012 & I.A. 17361/2018, I.A.
17990/2019, I.A. 2429/2023, I.A. 2430/2023 PAMINDER GUJRAL & ORS ..... Plaintiffs
Through: Mr. Rajat Aneja, Mr. Nupur Kumar, Mr. Karan Nagrath, Ms. Chandrika Gupta, Ms. Muskan and Mr. Ambuj Tiwari, Advocates.

VERSUS

KIRANJIT GUJRAL & ORS ..... Defendants
Through: Mr. Rajesh Yadav, Sr. Advocate with Ms. Chandrani Prasad, Mr. Manish Chaubey, Ms. Aditi Kakkar, Advocates with D-1 in person.

CORAM:

HON’BLE MR. JUSTICE CHANDRA DHARI SINGH

JUDGMENT

CHANDRA DHARI SINGH, J.

I.A. 5138/2018 (Stay)

1. The instant application under Section 151 of the Code of Civil Procedure, 1908 (CPC) has been filed on behalf of the Applicants/Defendants seeking the following reliefs: “(a) The Application be allowed and the proceedings in the present suit be stayed in view of the order dated 08.09.2017 passed in TP No. 147/2017 by the HC. (b) The parties to the present suit be directed to maintain the status quo as directed by the HC vide order dated 10.01.2013. (c)Any other order which this Hon‟ble Court may deem fit and proper in the facts and circumstances of the case may also be passed.”

FACTUAL MATRIX

2. The instant civil suit was filed by the Plaintiffs for the partition of the property left by the parents of the Plaintiffs and Defendant no. 1 seeking decree of partition and separate possession of the respective share of the immovable properties, along with perpetual injunction against the Defendants restraining them from encumbering, alienating, or otherwise disposing of the properties.

3. The Plaintiffs and Defendant no.1 are children of late Shri Mohinder Singh Gujaral, who passed away on 4th May 2012 and Mrs. Upkar Gujaral, who passed away on 8th October, 2004. The Defendants no. 2 & 3 are sons of the Defendant no. 1.

4. At the time of demise of the mother of the parties, she was survived by the following legal heirs i) Sh. Mohinder Singh Gujaral (Husband) ii) Mr. Parminder Singh Gujaral (Plaintiffs no. 1) iii) Ms. Neelu Chawla (Plaintiffs no. 2) iv) Mr. Kiranjit Gujaral (Defendant no. 1) v) Mr. Ranju Sayal (Plaintiffs no. 3)

5. Apart from the movable properties, the mother of the parties left the following immovable properties: i) A-6, New Friends Colony, New Delhi-110065 ii) 802-Vishal Bhawan, 95, Nehru Place, New Delhi-110019

6. The properties left by the mother were bequeathed on the father as per the Will of the mother, executed on 21st July, 1995 and was subsequently probated by the deceased father of the parties in Probate case no. 234 of 2006. The Plaintiffs have filed revocation of the said probate case, which is pending before District Court, Tis Hazari, Delhi.

7. During his lifetime, the father of the parties made two separate Wills dated 9th May, 2008 with respect to the said two immovable properties. After the death of the father of the parties, the executor appointed by the deceased filed for probate of the alleged Wills of the deceased father of the parties which are pending as probate case NO. 69/2012 before the Saket District Court, Delhi.

8. In 2013, the Defendants had filed a suit no. 21/2013 in this Court seeking declaration as owners of one of the suit properties bearing no. A- 6, New Friends Colony. The said suit has been transferred to the Saket District Courts due to enhancement of minimum pecuniary jurisdiction of this Court and remains pending till this date.

9. In the instant suit, the Defendants have filed the present I.A. NO. 5138/2018 praying for grant of stay of the suit proceedings under Section 10 of the CPC in light of the pending probate and revocation of probate proceedings in the Courts below.

10. Learned counsel appearing on behalf of the Applicants/Defendants submitted that the present suit has been filed by the Plaintiffs on the ground that their parents had died intestate. It is submitted that the said contention of the Plaintiffs is misconceived as both the parents had left behind their respective Wills and the said Wills are subject matter of the probate petitions. The said contention is even otherwise dependent on the outcome of probate petitions and the Plaintiffs will succeed in the present suit only when the pending probate petitions are dismissed in their favor and when it is held that the parents have not left behind any Wills and had died intestate.

11. It is submitted that prior to filing of the present suit by the Plaintiffs, the Applicants/Defendants had filed a suit for declaration and permanent injunction before this Court titled as ‘Kiranjit Gujaral & Ors. v. Parminder Gujral & Ors’ numbered as CS (OS) No. 21/2013. Due to enhancement of the minimum pecuniary jurisdiction of this Court, the said suit was transferred to the District Court, Saket vide order dated 13th January, 2016 and is still pending for adjudication.

12. It is submitted that the father of the parties had filed a probate petition no. 234/2006 seeking grant of probate of Will of the mother dated 21st July, 1995 titled as ‘MS Gujaral v. State of NCT of Delhi & Ors’ before the concerned probate Court. Pursuant to the no-objection given by the parties, the competent Court granted the probate of the said Will vide order dated 15th May, 2007. After the death of the father, the Plaintiffs applied for the revocation of the aforementioned probate Revocation No. 42418/2016 which is pending before the District Court, Tis Hazari.

13. It is further submitted that in addition to the said revocation proceedings of the probate of Will, there is another probate proceeding seeking probate of the two registered Wills dated 9th May, 2008 of the father of both the parties which is pending in the District Court, Tis Hazari. In the said probate proceedings, Sh. Vijay Kumar Paul was appointed as executor of both the Wills and has filed the probate petitions in respect of the said Wills.

14. It is submitted that it is the settled law that Section 10 of the CPC contemplates substantial identity of matter in the issue in two suits. It is not the identity of the main issue or all issues but the identity of matter in issue is directly and substantially same, which is the determining test. The determining test in the present case is probate of Wills. The decision in one suit must non-suit the other suit.

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15. It is further submitted that the probate judgment being a judgment in rem will operate as res judicata in the present suit. In the instant application, it is an admitted fact that the probate petitions are pending which are subject matter as well as the determining factor of the two suits. Therefore, the suits are liable to be stayed till the final decision in the probate petition.

16. It is submitted that the court can also exercise its inherent powers under Section 151 of the CPC and stay the proceedings, if the proceedings in the instant suit cannot be stayed under Section 10 of the CPC. (On behalf of the plaintiffs/non-applicants)

17. Learned Senior Counsel for the plaintiffs/non-applicants submitted that the present suit is not only with regard to immovable assets but also with regards to the movable assets left by the deceased parents of both the parties and Applicants/Defendants need to give the share of the Plaintiffs to them or a decree of admission be passed with respect to the movable assets, for which a separate application is being moved.

18. It is submitted that it is a well-settled principle of law that Section 10 of the CPC is applicable only when the entire subject matter of both the suits is identical and not when there is mere similarity or overlapping of the issues.

19. It is submitted that the instant suit is for the partition of the assets left by the parents of the parties is not limited to the two immovable properties, but includes movable properties as well. The Applicants/Defendants have also admitted that the deceased parents of the parties had movable properties as mentioned by the Applicants/Defendants in the written statement which are reproduced herein below: “(a) Shares of Motherson Sumi Systems Ltd. (MSSL Ltd. and Shares in Samvardhana Motherson Group (b) Mutual Funds through Standard Chartered Bank, Connaught Place Branch, New Delhi; (c)Fixed Deposits in Standard Chartered Bank, Connaught Place Branch, New Delhi. (d)Shares in MSG Consultants Pvt. Ltd. and its assets. (e) Shares in Upsons Impex Pvt. Ltd. and its assets (f)Assets of UPI Realty LLC and UPI Mini Family Trust.”

20. It is submitted that the very basis on which the instant application has been filed by the Applicants/Defendants is baseless as it is the matter of record that the present suit has been filed on 7th November, 2012, whereas CS(OS) No. 21/2013 (New No. CS No 209949/2016) pending before Additional District Judge, Saket Court (South-East), Delhi has been filed on 5th January, 2013. The summons in the present suit were issued on 10th January, 2013, whereas summons in CS(OS) No. 21/2013 were issued on 7th January, 2013.

21. It is further submitted that the Applicants/Defendants have placed heavy reliance upon the order dated 8th September, 2017 passed by this Court in Transfer Petition bearing No. TR.P.(C) 147/2017 for the stay of the instant suit. In the said order, the matter was adjourned to enable the parties to take instructions which is reproduced as under:

“5. As per my understanding, the proceedings in both the suits are liable to be stayed till the decision of the proceedings for revocation of the probate of the Will of the mother and of the probate sought of the document claimed to be the Will of the father, irrespective of which of the proceedings were initiated earlier; since the judgment of the Probate Court is in rem, the said proceedings have to be given primacy. 6. It is felt that if no proceeding in either of the two suits are to take place and the outcome of the suits is to be governed by the outcome of the revocation and the probate proceedings aforesaid, no purpose will be served in effecting the transfer sought. 7. It is deemed appropriate to give time to the counsel for the petitioners to consider.”

22. It is submitted that the said transfer case was withdrawn by the Applicants/Defendants and as such, mere observations passed by this Court in an interim order cannot be a basis to sustain an application under Section 10 of the CPC substantially affecting the rights of the parties.

23. It is submitted that the application is without any substance and is liable to be dismissed.

24. Heard learned counsel for the parties and perused the records.

ANALYSIS

25. I have given thoughtful consideration to the submissions made by the parties. Under instant circumstances, the issue for consideration of this Court is whether the Court can stay the proceedings in the instant suit by exercising its powers as provided under Section 151 of the CPC or Section 10 of the CPC. Scope of Section 151 of the CPC

26. In the instant application, the Applicants/Defendants have submitted that the Court can invoke its inherent power under Section 151 of the CPC for staying proceedings in the present suit. Before proceeding this Court finds it necessary to briefly revisit the existing position of law with respect to Section 151 of the CPC which reads as under: Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.

27. On perusal of the said provision, it has been observed that the said Section provides a broad scope where the term „ends of justice‟ becomes important in order to determine the invocation of the inherent powers under this Section by the Court. In K.K. Velusamy v. N. Palanisamy, (2011) 11 SCC 275, the Hon’ble Supreme Court summarized the scope of Section 151 of the CPC in following manner:

“12. The respondent contended that Section 151 cannot be used for reopening evidence or for recalling witnesses. We are not able to accept the said submission as an absolute proposition. We however agree that Section 151 of the Code cannot be routinely invoked for reopening evidence or

recalling witnesses. The scope of Section 151 has been explained by this Court in several decisions. We may summarize them as follows: (a) Section 151 is not a substantive provision which creates or confers any power or jurisdiction on courts. It merely recognises the discretionary power inherent in every court as a necessary corollary for rendering justice in accordance with law, to do what is “right” and undo what is “wrong”, that is, to do all things necessary to secure the ends of justice and prevent abuse of its process. (b) As the provisions of the Code are not exhaustive, Section 151 recognises and confirms that if the Code does not expressly or impliedly cover any particular procedural aspect, the inherent power can be used to deal with such a situation or aspect, if the ends of justice warrant it. The breadth of such power is coextensive with the need to exercise such power on the facts and circumstances.

(c) A court has no power to do that which is prohibited by law or the Code, by purported exercise of its inherent powers. If the Code contains provisions dealing with a particular topic or aspect, and such provisions either expressly or by necessary implication exhaust the scope of the power of the court or the jurisdiction that may be exercised in relation to that matter, the inherent power cannot be invoked in order to cut across the powers conferred by the Code or in a manner inconsistent with such provisions. In other words the court cannot make use of the special provisions of Section 151 of the Code, where the remedy or procedure is provided in the Code.

(d) The inherent powers of the court being complementary to the powers specifically conferred, a court is free to exercise them for the purposes mentioned in Section 151 of the Code when the matter is not covered by any specific provision in the Code and the exercise of those powers would not in any way be in conflict with what has been expressly provided in the Code or be against the intention of the legislature. (e) While exercising the inherent power, the court will be doubly cautious, as there is no legislative guidance to deal with the procedural situation and the exercise of power depends upon the discretion and wisdom of the court, and in the facts and circumstances of the case. The absence of an express provision in the Code and the recognition and saving of the inherent power of a court, should not however be treated as a carte blanche to grant any relief. (f) The power under Section 151 will have to be used with circumspection and care, only where it is absolutely necessary, when there is no provision in the Code governing the matter, when the bona fides of the applicant cannot be doubted, when such exercise is to meet the ends of justice and to prevent abuse of process of court.”

28. The Calcutta High Court has also explained the meaning and scope of Section 151 CPC in Debendra Nath Dutt v. Satyabala Dassi, 1949 SCC OnLine Cal 141 and held:

“38. Section 151, Civil P. C., does not formulate any new doctrine but is only a legislative recognition of the well- known principle that every Court has inherent power to act ex debito justitia and to do that real justice for the administration of which alone it exists. "Ends of justice" are solemn words and no mere polite expression in juristic methodology and here secreted in the solemn words is the aspiration that justice is the pursuit and end of all law. But the words ''ends of justice" wide as they are do not, however, mean vague and indeterminate notions of justice, but justice according to the statutes and laws of the land. They cannot mean that express provisions of the statute can be overriden at the dictates of what one might by private emotion or

arbitrary preference call or conceive to be justice between the parties. There is a wholesome temptation to which the Courts willingly succumb when a suit is dismissed without being heard for default of appearance of the plaintiffs to restore such suit with a view to grant the defaulting party an opportunity to have his case heard and decided on merits and the judicial conscience is set at rest by ordering payment of costs against the defaulting party. Costs are the sovereign palliative for the judicial conscience and I must confess at one stage I felt inclined to apply that palliative and restore this suit. On a closer consideration and reflection, I have however come to this opinion that the words "ends of justice" in Section 151, Civil P. C. do not permit the Court to take a step or a procedure which defeats a statutory provision or the law of the land, when the plaintiffs does not appear and the defendant only appears Order 9, Rule 8, Civil P. C., makes the clear and mandatory provision that the Court shall dismiss the suit. Where there is such clear provision for such a case it is not open in my judgment to treat the order of dismissal as one under the inherent jurisdiction of the Court. When again Order 9, Rule 9 of the Code lays down a particular procedure by which the dismissal could be set aside I am of the opinion it is not open to the Court to say that nevertheless the defaulting party may choose not to adopt that procedure and yet ask the Court to set aside the dismissal by invoking the inherent jurisdiction of this Court. It is well established law that there is no room for the application of the inherent power where there is an express provision in the Civil Procedure Code.” The scope of Section 151 of the CPC as succinctly described by the Hon’ble Supreme Court and the High Courts in several judgments is clear and unambiguous.

29. In the instant case, the issue before this Court is whether the court can stay the proceedings in the instant case by invoking its inherent powers under the said provision. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527 the Hon’ble Supreme Court dealt with the similar issue and held as follows:

“42. The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as may be necessary for the ends of justice or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed in LR 62 IA 80 (Maqbul Ahmed v. Onkar Pratab) “It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits of the Act a general discretion to dispense with the provisions of the Act”. Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive.”

30. The said observations of the Hon’ble Supreme Court were again emphasized in the judgment of National Institute of Mental Health & Neuro Sciences vs. C Parameshwara, (2005) 2 SCC 256 and the Hon’ble Supreme Court observed as follows:

“12. In the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal [AIR 1962 SC 527 : 1962 Supp (1) SCR 450] it has been held that inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision

should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bypass Section 10 CPC by invoking Section 151 CPC.”

31. Therefore, it is clear from the abovesaid that even though the courts have been provided inherent power under Section 151 of the CPC, it is limited to the extent where it does not nullify the other provisions of the CPC. The provision shall normally be considered as exhaustive, if the court is dealing with a particular matter related to the said provision. Scope of Section 10 of the CPC

32. The instant application has been filed for stay under Section 10 of the CPC. For the same, it is imperative to examine the nature and scope of Section 10. The said provision is reproduced hereinbelow- “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 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] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by 2[the Central Government 3* * *.] 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.”

33. A perusal of the said provision indicates that, in order to attract the same, there has to be two suits between the parties, in which the matter in the issue is directly and substantially present in the previously instituted suit. The use of the expression ‘suit’ is material, in as much as, the substantive rights of the parties are decided by a Court of the competent jurisdiction.

34. The scope and test of the applicability of Section 10 of the CPC has been extensively explained by the Hon’ble Supreme Court in National Institute of Mental Health & Neuro Sciences vs. C Parameshwara (supra) where the applicability of the said Section was tested between the suit instituted in a Civil Court and the proceedings pending before the Labour Court in the following manner:

“8 The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.”

35. Thus, from the aforesaid judgments, the following essential ingredients for allowing the application and staying the proceedings under Section 10 of the CPC can be made outi) There must be two suits; ii) The parties to both the suits must be same or are litigating under the same title or claim; iii) The matter in the issue should be in the previous suit, directly and substantially both. iv) The previously instituted suit must be pending.

36. For the defendants to succeed in their claim, the aforesaid essential ingredients need to be satisfied. For the same, it is important for this Court to examine whether the probate proceedings and the civil suit bearing no. CS(OS) No. 21/2013 pending in the Court below constitute as a „previously instituted suit‟ within the meaning of Section 10 of the Code and if the proceedings in the instant suit can be stayed.

37. To answer the aforementioned question, it is pertinent to refer to certain judicial dicta laid down by this Court and other courts with reference to the present discussion. With regards to pending probate proceeding, in Ravi Khanna v. Pankaj Khanna 2008 SCC OnLine Del 979 this Court delved into the issue in the following manner;

“2. The petitioner prayed for staying of the proceedings before the Court below by making an application under Section 10 of CPC on the ground that a suit for partition and rendition of account was pending between the same parties before the Court of learned Additional Civil Judge, Sr.

Division, Amritsar and in that suit one of the issues was regarding execution of the same Will which was the subject matter of the probate petition before the Court below. The Probate Court, however, dismissed the application observing inter alia that the proceedings under the Succession Act were altogether different than the proceedings before the Civil Court. The Probate Court does not function as a Civil Court and the Probate Court has exclusive jurisdiction to decide about the genuineness of the Will.

3. Mere pendency of a suit for partition puts no bar for grant of probate or letter of administration under the Provisions of the Succession Act. It is settled law that probate Court has jurisdiction to determine about the genuineness of the Will and whether the petitioner who applied for the probate was entitled to grant of probate of the Will or not. The order of the Probate Court does not decide as to title of the property mentioned in the Will and whether or not a testator had a right to bequeath the property by way of a Will or not. The Court where the suit for possession and partition of the property is pending would be determining the rights of the parties qua the property. In such a suit even if a Will is produced either by plaintiffs or by the defendant to claim title over any portion of the property, the Civil Court will have to adjudicate about the title of the property, whether the Will could be executed or not and whether any right was conferred by the Will or not. While the probate Court can give findings only about the genuineness of the Will.”

38. The Patna High Court in Amrita v. Rakesh Kumar 2016 SCC OnLine Pat 824 discussed the nature of the probate proceedings in relation to the partition suit. The court held that;

“5. Probate proceedings are summary in nature whereas partition suit is plenary in nature where the question of unity of title and possession is to be examined. In the said title suit the legality and validity of the Will can also be examined by the Civil Court.

6. The proceeding in a partition suit and the Probate proceeding are distinct. Proceeding in title suit cannot be stayed which are plenary in nature whereas the Probate proceedings are summary in nature to be granted by a Court of limited jurisdiction. The order of the Supreme Court referred to by the learned counsel for the petitioner is an order passed to club the proceeding of the Probate proceeding and the title suit and not deciding an issue that the proceedings of the title suit are required to be stayed. In that view of the matter, the said judgment is of no assistance to the learned counsel for the petitioner for the question raised in this writ petition.”

39. This Court in Praveen Chandra v. Aparajita & Ors. 2019 SCC Online Del 10820 relied upon the aforesaid decision of the Patna High Court and considered whether the pending probate proceedings can be considered as a previously instituted suit and held that:

“13. A probate petition, strictly speaking, cannot be considered to be a „previous suit‟ under Section 10 CPC. Ideally, a probate petition and the partition suit between the same parties ought to be heard and adjudicated together, in order to avoid multiplicity of proceedings and conflicting findings/decisions. However since the suit is pending in the District Courts, Delhi and the probate petition is pending before the Civil Judge, Motihari, Bihar, this Court is of the opinion that the probate petition having been filed 8 years ago i.e. in 2011 and the partition suit being also pending for more than 4 to 5 years, the trial in the partition suit shall continue xxxxxx 15. From the above it is clear that both the probate petition and the suit for partition can proceed. If the Trial Court decides that the partition suit is liable to be dismissed, then no further orders would be required to be passed. However, if the suit is decreed, it is directed that the said decree would come into effect after the decision of the probate petition, which is pending in Motihari, Bihar. Post the decision in the probate petition, parties are left to avail of their respective remedies in respect of decisions in both proceedings”

40. Therefore, it is crystal clear from the above discussion that the pending probate proceedings cannot be considered as a ‘previously instituted suit’ as mandated under Section 10 of the CPC.

41. Now adverting to the Civil Suit (OS) No. 21/2013 pending before the Saket District Court, it is pertinent to discuss whether the whole of the subject matter in the said CS(OS) No. 21/2013 is identical to the instant partition suit or not and if the same can be considered as a „previously instituted suit‟ for stay of the proceedings in the instant case.

42. In National Institute of Mental Health & Neuro Sciences vs. C Parameshwara (Supra) the Hon’ble Supreme Court made an important observation with regards to the applicability of Section 10 which was reproduced in the foregoing paragraphs. In the said case, the court held that the underlying object in Section 10 of the CPC is to prevent courts in trying two suits in respect of same matter in issue.

43. The Hon’ble Supreme Court in the judgment of Aspi Jal v. Khushroo Rustom Dadyburjo (2013) 4 SCC 333 also discussed the applicability of section 10 and held as follows:

“11. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether “the matter in issue is also directly and substantially in issue in previously instituted suits”. The key words in Section 10 are “the matter in issue is directly and substantially in issue in a previously instituted suit”. The test for applicability of Section 10 of the Code is

whether on a final decision being reached in the previously instituted suit, such decision would operate as res judicata in the subsequent suit. To put it differently one may ask, can the plaintiffs get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in the affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.

12. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what “the matter in issue” exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subjectmatter of the two suits must be the same. This provision will not apply where a few of the matters in issue are common and will apply only when the entire subject-matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.”

44. Therefore, for a suit to qualify as a „previously instituted suit‟ under section 10 of the CPC, the matter in the issue should be directly and substantially present in the previously instituted suit.

45. On consideration of the submissions made on behalf of the Applicants/Defendants, the proceedings pending in the Civil Suit bearing no. CS (OS) No. 21/2013, is limited to seeking permanent injunction in relation to one of the immovable properties bearing no. A-6, New Friends Colony, and the same is merely a part of the suit properties. Therefore, as per the submissions made by both the parties, it can be established that no Will exists in relation to the movable properties.

46. In view of the submissions made by the Applicants/Defendants, it is clear that the deceased parents of both the parties owned other movable and immovable properties which are not part of the Will pending probate in the Court below. As per the submissions, the Applicants/Defendants have mentioned the other movable properties as owned by their father. Even though it is still not established at this stage, whether the deceased parents had already given the said movable and immovable properties to the parties, it can be fairly said that the instant suit is not only regarding the two immovable properties as claimed by the Applicants/Defendants in their submissions.

47. On the basis of the reasoning as provided by the Hon’ble Supreme Court in the aforementioned cases, as per the submissions made by the parties, and on perusal of the instant application, it is clear that the pending civil suit before the Saket District Court cannot qualify as a „previously instituted suit‟ as the whole of the subject matter in both the suits is not identical.

48. In the instant application, the Applicants/Defendants also submitted that the proceedings can also be stayed in light of the stay by this Court in Transfer Petition bearing No. TR.P. (C) 147/2017 by an order passed on 8th September, 2017. This Court is of the view that the said order was mere observatory in nature and the counsel of the Plaintiffs (Applicants/Defendants) was directed to take instructions from their clients. Later on, the said petition was withdrawn by the Plaintiffs. Hence, the said order cannot be relied upon for deciding the instant application.

49. On perusal of both the provisions explained above and application of the same in the instant case, it is concluded that the probate proceedings and the CS(OS) No. 21/2013 pending before the Court below cannot be termed as „previously instituted suit‟ as mandated under Section 10 of the CPC for the stay of proceeding. Therefore, the said partition suit filed by the Plaintiffs/Non-Applicants cannot be stayed by this Court under Section 10 of the CPC or by invoking the inherent power under Section 151 of the CPC.

CONCLUSION

50. In view of the above said discussion on facts as well as law, I do not find any cogent reasons to stay the proceedings in the instant suit as the suits pending in the courts below cannot be termed as ‘previously instituted suit‟ as mandated under Section 10 of the CPC. The Court can also not invoke its inherent power under Section 151 of the CPC as Section 10 of the CPC is exhaustive in nature and section 151 of the CPC cannot override the express statutory provisions mandated in Section 10 of the CPC.

51. Accordingly, the instant application, being devoid of merits, is dismissed.

52. The judgment be uploaded on the website forthwith.

JUDGE JULY 19, 2023 gs/av

Paminder Gujral & Ors. v. Kiranjit Gujral & Ors.

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