(Prayer: Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased to set aside the impugned order dated 2-8-2024 passed in IA. No. 1556 of 2022 in O.S. No. 185 of 2010 on the file of Junior Civil Judge, Nandikotkur, and pass

IA NO: 1 OF 2024

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay of the suit O.S.No.185 of 2010 on the file of Junior Civil Judge, Nandikotkur, pending disposal of the C.R.P. and pass)

1. This Civil Revision Petition is filed challenging the legality and correctness of the order dated 02.08.2024 passed in I.A.No.1556 of 2022 in O.S.No.185 of 2010 by the learned Civil Judge (Junior Division), Nandikotkur.

2. The Revision Petitioners are the petitioners/defendants, while respondents are respondents/plaintiff nos.2 to 4 in I.A.No.1556 of 2022 in O.S.No.185 of 2010 on the file of the Court of the learned Civil Judge (Junior Division), Nandikotkur.

3. The facts that led to filing of this Civil Revision Petition, in brief, are that:

                  (i) Originally, the respondent nos. 1 to 3 along with one M.Moulali, filed the suit in O.S.No.185 of 2010 against the petitioners for permanent injunction restraining the petitioners from interfering with their peaceful possession and enjoyment of the plaint schedule property. Subsequently, plaintiff no.1- M.Moulali was transposed as third defendant as per orders dated 7.12.2017 passed by the learned trial Judge. Thereafter, the respondent nos.1 & 2 filed another suit vide O.S.No.178 of 2022 against respondent no.3 and Legal Representatives of Mulla Moulali (transposed as third defendant in O.S.No.185 of 2010) for partition of the plaint schedule property therein and for allotment of 2/4th share to them, 1/4th share to defendant no.1 and 1/4th share to defendants 2 to 13, who are Legal Representatives of Mulla Moulali.

                  (ii) The petitioners, who are defendant nos. 1 and 2 in O.S.No.185 of 2010 filed the petition vide I.A.No.1556 of 2022 under section 151 of CPC to dismiss the suit vide O.S.No.185 of 2010 as infructuous on the ground that the subsequent suit filed by the respondent nos. 1 and 2 vide O.S.No.178 of 2022 renders the cause of action of the suit in O.S.No.185 of 2010 infructuous.

                  (iii) The respondent nos.1 and 2 resisted the claim made by the petitioners by filing counter contending that though the suit schedule property is common in both the suits, but cause of action and reliefs sought in both the suits are entirely different and hence filing of the subsequent suit does not have the effect of rendering the cause of action in the earlier suit as infructuous.

                  (iv) The learned trial Judge, upon hearing the learned counsel for the parties and upon considering the material available on record dismissed the application holding that since both the suits were founded on different causes of action, the petition is not maintainable.

                  (v) The said dismissal order was assailed in this Civil Revision Petition.

4. Heard Sri Budige Bhoja Raam, learned counsel for the petitioners, and Sri C.Prakash Reddy, learned counsel for the respondents.

5. Sri Budige Bhoja Raam, learned counsel for the petitioners, while reiterating the contents of the affidavit filed in support of the petition in trial court and grounds of Revision, would contend that since the suit filed by the respondent nos.1 and 2 vide O.S.No.178 of 2022 rendered the cause of action in the earlier suit in O.S.No.185 of 2010 infructuous, the suit in O.S.No.185 of 2010 has to be dismissed as held in Shipping Corporation of India Limited vs. Machado Brothers and others((2004) 11 Supreme Court Cases 168), however, the court below unable to comprehend the observations made therein dismissed the petition. Accordingly, prayed to allow the Civil Revision Petition.

6. On the other hand, Sri C.Prakash Reddy, learned counsel for respondents, while reiterating the contents of the counter filed before the trial Court contended that except the suit schedule property, the causes of action and the reliefs sought in both the suits are distinct and different and therefore, the Court below having analysed the material in proper perspective dismissed the petition and the said order does not require any interference of this Court and since the Civil Revision Petition lacks merit deserves dismissal. Accordingly, prayed to dismiss the Civil Revision Petition.

7. Perused the material available on record and considered the submissions made by learned counsel for the parties.

9. No doubt, the plaint schedule property of both the suits is one and the same. According to the petitioners, filing of the suit in O.S.No.178 of 2022 had caused the cause of action of the suit in O.S.No.185 of 2010 disappeared and therefore, the suit in O.S.No.185 of 2010 shall be disposed of having become infrcutuous.

10. In the decision relied on by the learned counsel for the petitioners in Shipping Corporation of India Limited vs. Machado Brothers and others (supra 1), the Hon’ble Apex Court held thus:

                  “25. Thus it is clear that by the subsequent event if the original proceeding has become infructuous, ex debito justitiae, it will be the duty of the court to take such action as is necessary in the interest of justice, which includes disposing of infructuous litigation. For the said purpose it will be open to the parties concerned to make an application under Section 151 CPC to bring to the notice of the court the facts and circumstances which have made the pending litigation infructuous. Of course, when such an application is made, the court will enquire into the alleged facts and circumstances to find out whether the pending litigation has in fact become infructuous or not.

                  31. For the reasons stated above, we are of the opinion that continuation of a suit which has become infructuous by disappearance of the cause of action would amount to an abuse of the process of the court, and interest of justice requires that such suit should be disposed of as having become infructuous. The application under Section 151 CPC in this regard is maintainable.”

11. The suit vide O.S.No.185 of 2010 was filed by respondent nos. 1 and 2 against the petitioners and one M.Moulali (originally first plaintiff but transposed as defendant no.3) for permanent injunction contending that the defendants are trying to interfere with their property. The respondent nos. 1 and 2 subsequently filed O.S.No.178 of 2022 against respondent no.3 and Legal Representatives of M.Moulali (transposed as third defendant in O.S.No.185 of 2010) for partition of the plaint schedule property. Both the suits were founded on different and distinct causes of action, as rightly held by the learned trial Judge. Hence, the suit vide O.S.No.178 of 2022 does not make the cause of action O.S.No.185 of 2010 to disappear. Therefore, the observations made in the decision referred supra cannot be made applicable to the facts of the case.

12. The learned trial Judge upon appreciation of the facts and circumstances of the case had rightly dismissed the petition. The said order does not suffer from any infirmity and hence requires no interference of this Court. The Civil Revision Petition lacks merit and the same deserves dismissal.

14. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs.

Pending miscellaneous petitions, if any, shall stand closed.