Broadly the case of the plaintiff is that he is the owner of a property called ‘Black Acre’. He is also in possession of the same. He claims to have acquired the property by way of perpetual sub lease deed, way back in 1981. He also claims to have raised a construction (three floors) on the said property and allowed the defendant, who is his youngest brother, to reside in the ground floor of the said property, as licencee, in permissive occupation.
It is the plaintiff’s case that the defendant has now refused to vacate the property and has also filed a frivolous suit for Partition, currently pending in the Hon’ble High Court, with respect to the suit property asking for a share, falsely potraying ‘Black Acre’ to be an ancestral property, in which – the plaintiff, defendant and their sister ‘S’ have an equal share.
In these circumstances, the plaintiff has filed the present suit seeking Mandatory Injunction in the form of a direction to the defendant mandating him to vacate the ground floor portion of the suit property, currently under his occupation, and also for recovery of mesne profits.
The defendant has opposed the very maintainability of this suit, and has filed an application u/s 10 of the CPC, claiming that on account of pendency of a previously instituted partition suit with respect to the same property, this suit ought to be stayed, in compliance of the mandate of Section 10 of the CPC.
In response to the said application, the plaintiff has claimed that the matter in issue in the present case is completely different from the partition suit pending before the Hon’ble High Court. The cause of action/relief claimed is totally distinct in the two cases.
He has further argued that since the sister of the plaintiff and defendant, ‘S’ is a party before the High Court in that suit, but not a party to the present suit; Therefore, the present suit and the previous suit cannot be stated to be between the ‘same parties’ and Section 10 cannot apply.
Last but not the least, the plaintiff has also argued and quite vehemently : that in the partition suit, the Hon’ble Court is seized of the entire suit property ‘Black Acre’ (all the three floors), whereas the present case pertains only to Ground Floor of the said property, which is allegedly in wrongful occupation of the defendant. Hence, the subject matter and parties in both the suits cannot be stated to be the same and therefore, Section 10 of the CPC is not attracted.
Decide whether the present suit ought to be stayed u/s 10 CPC, or not ? Also discuss briefly – the essential ingredients required to be satisfied for application of Section 10 CPC ?
The Model Answer by the team shall be uploaded on the blog in the next few days. In the meanwhile, the students are expected to try and write an answer to this question themselves.