Kailash Kumar v. Rudra Dev Deceased & Ors.

13. I may note that the Division Bench of the High Court of Bombay has, in Manilal Premji Gala v. Boman P. Irani[1], held in para 16 of the report, thus:

14. With greatest respect, it appears to me that the above noted view expressed by a Division Bench of the High Court of Bombay is contrary to the plain wording of Section 10. The expression “having jurisdiction to grant the relief claimed”, as employed in Section 10, on 2002 Supp Bom CR 623 a plain reading, appears to pertain to the Court before which the previously instituted suit is pending, and not the Court before which the later instituted suit is pending. I, therefore, express my respectful disagreement with the aforenoted decision of the High Court of Bombay.

15. That, however, is not the main issue in controversy. The question that arises is, whether the Court in seisin of the earlier instituted suit “should have jurisdiction to grant the relief claimed”. To reiterate, does this mean that the Court which earlier instituted suit should have the jurisdiction to grant the relief claimed in that suit, or to grant the relief claimed in the later instituted suit, the trial of which is sought to be stayed? The learned ADJ has, in the impugned order dated 6th July 2022, inclined to the later view.

16. Section 10, plainly read, is somewhat ambiguous in this regard. The issue, however, appears to be settled by the judgment of the Supreme Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara[2], (NIMHASNS, hereinafter) which is regarded as an authority on Section 10. Para 8 of the report in the said case read thus:

17. The Supreme Court has used, not once, but twice, the expression “courts of concurrent jurisdiction”. The expression “concurrent jurisdiction” implies that the jurisdiction of both Courts, both subject-wise as well as pecuniary must be the same. Though Mr. Shridhar attempted to submit that the expression “concurrent jurisdiction” should mean that both Courts should have the jurisdiction to try the issue, and could not be treated as extending to pecuniary jurisdiction, there appears no reason for such a restricted interpretation to be accorded to the words “courts of concurrent jurisdiction” employed by the Supreme Court. The fact that the Supreme Court says that both Courts should have concurrent jurisdiction, indicates that the jurisdiction of both Courts, pecuniary and otherwise, must be the same.

18. “Concurrent” is defined in P. Ramanatha Aiyars’ Law Lexicon as “having the same authority, acting in conjunction, existing together agreeing in the same act; contributing to the same event; contemporaneous; running together; co-operating; contributing to the same effect; accompanying; conjoined; associate; concomitant; joint and equal; Running together in time or space; covering the same ground”. A prisoner who is directed to undergo, two sentences concurrently has to undergo both the sentence only once for the duration of that period of concurrence.”

19. The principle of concurrence, when it applies to judicial fora, therefore, implies equality of authority. Both Courts should, therefore, have jurisdiction to try both suits, it is only then the Courts can be said to be the Courts of concurrent jurisdiction.

20. Mr. Shridhar sought to press into service Section 11 of the CPC, which deals with res judicata, especially Explanation VIII thereto, to submit that, if such an interpretation were granted, it would run contrary to Explanation VIII to Section 11. Section 11 and Explanation VIII thereto read thus: “11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation VIII.— An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”

21. The submission is, in my considered opinion, not acceptable. No doubt, for applying the principle of res judicata, pecuniary jurisdiction of the two Courts is not material, in view of the clear words in Explanation VIII “notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit”. Res judicata, as a principle, therefore, would apply irrespective of the pecuniary jurisdiction of the two Courts concerned, or whether the Court seized with the earlier suit did or did not, possess the jurisdiction to try the suit instituted later in point of time.

22. The Supreme Court in, NIMHANS and other decisions dealing with Section 10 has held that one of the definitive tests, while applying Section 11, is whether a decision in the earlier instituted suit would operate as res judicata in the later suit. Though a finding in an earlier instituted suit would, if other conditions of Section 11 apply, operate as res judicata in the later instituted suit irrespective of the pecuniary jurisdiction of the two courts, and an additional condition is prescribed in the statute for a Section 10 to apply, which is, that the earlier suit must have jurisdiction to grant the relief claimed. The expression “jurisdiction to grant the relief claimed”, applying NIMHANS, would imply that both Courts should have concurrent jurisdiction, i.e. that the Court in seisin of the earlier instituted suit must possess the pecuniary jurisdiction to decide the suit instituted later in point of time. That any finding in the earlier suit must operate as res judicata in the later suit is an additional consideration which has to be satisfied in order for Section 10 to apply. These are two distinct considerations, both of which are cumulatively required to be satisfied for Section 10 to apply in a particular case.

23. I am in agreement, therefore, with the finding of the learned ADJ that, as the Court seized with CS SCJ 1737/2021 did not have the pecuniary jurisdiction to grant the relief claimed in CS DJ 64/2021, no case for stay of trial of CS DJ 64/2021 was made out.

24. As noted in the beginning of this judgment, Mr. Shridhar seeks to apply for consolidation of the two suits. Leave and liberty is granted to him to do so. Any such application if made would be decided on its own merits.

25. Needless to say, this Court has not, in the present judgment, examined the aspect of consolidation. The Court seized with the prayer for consolidation would, therefore, decide the issue irrespective of the observations in this decision.

26. This petition is dismissed as withdrawn. Miscellaneous applications do not survive for consideration and are disposed of.