CPC | Nature Of Issues Crucial To Attract Applicability Of Section 10, Not Nature Of Relief Sought: J&K High Court

A bench comprising Justice Sanjay Dhar has explained that if the matter in issue in the subsequent suit is directly and substantially in issue in the previously instituted suit, Section 10 of the CPC has to be invoked, because the same is mandatory in nature.

Section 10 of CPC prohibits 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.

Background:

The dispute originated from proceedings before the Civil Judge (Senior Division) in Sopore. On July 16, 2021, Petitioner Abdul Majid Kirmani and others filed a suit for partition and permanent injunction against Respondent Bilal Ahmad Kirmani, claiming joint possession of land.

He sought to prevent Bilal from raising constructions on the allegedly unpartitioned joint property. The trial court ordered both parties to maintain status quo on the disputed property.

Conversely, on July 19, 2021, Bilal filed a suit seeking an injunction to restrain the petitioners from interfering with his construction on his alleged share of the property. He claimed that the property had already been partitioned and that he was entitled to build on his portion. The trial court granted an exparte interim order in Bilal's favor, preventing the petitioners from obstructing his construction.

Subsequently On July 26, 2021, the petitioners filed an application under Section 10 of the CPC, seeking a stay on the suit filed by Bilal on the grounds that the subject matter of both suits was the same and the issues involved were identical.

They argued that allowing both suits to proceed concurrently would result in conflicting judgments and unnecessary complications. However, on August 7, 2021, the trial court dismissed this application, reasoning that the relief sought in the two suits differed and thus Section 10 CPC was not applicable.

Aggrieved of the same, the petitioners argued before the High Court that both suits concerned the same subject matter and involved identical issues, warranting a stay on the subsequent suit filed by Bilal under Section 10 of the CPC. They asserted that the property was unpartitioned and Bilal's construction activities were unauthorized.

Bilal countered that the property had been partitioned, and his construction activities were within his rights on his portion of the land. He sought to prevent the petitioners from interfering with his possession and development of the property.

Court's Observations:

Justice Sanjay Dhar meticulously examined the provisions of Section 10 of the CPC, which mandates that no court shall proceed with the trial of a suit where the matter in issue is substantially similar to that in a previously instituted suit between the same parties.

He highlighted that the core issue was whether the property in question was partitioned or unpartitioned, and this determination would dictate the reliefs in both suits.

The court noted that the petitioners' suit sought a decree of partition and an injunction against Bilal's construction activiti and Bilal's suit claimed the property was already partitioned and sought an injunction to prevent interference from the petitioners.

Emphasising that the trial court erred in focusing on the nature of relief sought rather than the nature of issues involved in the suits Justice Dhar remarked,

“.. The issues involved in the two suits are, therefore, identical in nature and it can safely be stated that the matter in issue in the previously instituted suit by the petitioners is directly and substantially in issue in the subsequent suit filed by the respondent. The conditions for applicability of Section 10 of the CPC are, therefore, clearly attracted to the case at hand”.

Underlining the mandatory nature of Section 10 CPC in cases with substantially identical issues in previously instituted suits Justice Dhar asserted that allowing both suits to proceed concurrently would result in contradictory findings and further complicate the matter.

“.. Both these orders cannot stand together, inasmuch once status quo has been directed to be maintained with regard to the suit property, which is common in the two suits, it was not open to the learned trial court to allow the respondent to alter this status quo”, the bench maintained.

In light of these observations, the High Court set aside the orders dated July 19, 2021, and August 7, 2021, passed by the Civil Judge (Senior Division), Sopore.

The court directed that the trial of Bilal Ahmad Kirmani's suit remain stayed until the resolution of the previously instituted suit by Abdul Majid Kirmani and others

Case Title: ABDUL MAJID KIRMANI & ANR. Vs BILAL AHMAD KIRMANI

Citation: 2024 LiveLaw (JKL) 198

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