# M/s Radha Krishan Industries v. State of

- **Citation:** (2021) 11 ILRA 717
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-09
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-radha-krishan-industries-v-state-of-46658
- **Pages:** 7

## Headnote

A. Civil Law - Res sub-judice - Civil Procedure
Code, 1908: Section 10, 11: The Court observed
that the requirement of necessary condition for
application of Section 10 of C.P.C. is not present as
the Misc. Case No. 422 of 2016 filed by the petitioner
was not pending as the same was dismissed for want
of prosecution and was not restored at the time of
passing the final order dated 09.10.2018 in M.N.R.
No. 82 of 2014, filed by the mother of the deceased.
(Para 31)

Writ Petition Rejected. (E-10)

List of Cases cited:

## Text

11 All. Smt. Vandana Singh & Ors. Vs. A.D.J., Court No. 1, Faizabad & Ors.
717
University that in all cases after the lapse of timelines, the Court cannot direct the University to
grant an affiliation even if facts and circumstances
demand.

82. In so far as the submission of the learned
counsel for the respondent no. 3 regarding
availability of alternate remedy is concerned, it is
to be noted that the alternate remedy is not an
absolute bar. In the instant case, a coordinate
Bench of this Court had already taken note of the
grievance of the petitioner while entertaining Writ
Petition No.19490 (M/S) of 2021. Any order or
action having passed during the pendency of the
writ petition, in such circumstances, it may not be
appropriate where time is also an essence, to
relegate the petitioner to the alternate forum of
appeal before the State.

83. Thus, for the aforesaid reasons, so also
that the inspection report is vitiated hence in the
facts and circumstances of this case, this Court
does not find much substance to the submission of
availability of alternate remedy raised by the
learned counsel for the respondent no. 3.

84. This Court is fortified in its view in light
of the decision of the Apex Court in the case of
M/s Radha Krishan Industries v. State of
Himachal Pradesh and Others, 2021 SCC
OnLine SCC 334 as well as in the case of
Assistant Commissioner of Sales Tax v.
Commercial Steel Limited, 2021 SCC OnLine
884, M/s Magadh Sugar & Energy Ltd. v. State
of Bihar & Ors., 2021 SCC OnLine 801.

85. After the aforesaid detailed discussions,
this Court arrives at a conclusion that the
inspection report and the reasons recorded therein
are not appropriate and deserves to be ignored.
Hence, in the aforesaid circumstances, this Court
provides that the respondent no.3 shall constitute a
fresh team (of new members not part of earlier
inspection) to inspect the college after putting the
college to notice within a period of 10 days from
the date of this order. Thereafter, in light of a fresh
report (and also providing an opportunity to the
petitioner to clarify any point in case if the
Inspecting Team so constituted has any doubt) and
keeping in mind the decision of the Apex Court as
discussed above in this judgment, shall pass a fresh
order regarding grant of affiliation within ten days
thereafter so that the entire exercise is completed
within 20 days from the date of this order.

86. In view of the aforesaid detailed
discussion, the present Writ Petition No.22635
(M/S) of 2021 is allowed. A writ in the nature of
certiorari is issued and the impugned order dated
22.09.2021 contained in Annexure No.1 to the
present writ petition No. 22635 (M/S) of 2021
shall stand quashed. The University concerned
shall after getting the fresh inspection done within
the time period as mentioned in paragraph 85 of
this judgment shall pass a fresh order regarding
grant of affiliation taking note of the fresh
inspection report and in light of the observations
made in this judgment. The original record as
submitted by the learned counsel for the
respondent No.3 has been handed over to Sri
Shivanshu Goswami, learned counsel for the
respondent No.3. In light of this judgment, the
Writ Petition No.19490 (M/S) of 2021 shall
accordingly stand disposed of.

87. In the facts and circumstances, there shall
be no order as to costs.
----------
(2021)12ILR A717
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.12.2021

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Misc. Single No. 23074 of 2021

Smt. Vandana Singh & Ors. ...Petitioners
Versus
A.D.J., Court No.1, Faizabad & Ors. ...Respondents
718 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Mohd. Ali , Kunwar Bahadur Singh

Counsel for the Respondents:
C.S.C.

A. Civil Law - Res sub-judice - Civil Procedure
Code, 1908: Section 10, 11: The Court observed
that the requirement of necessary condition for
application of Section 10 of C.P.C. is not present as
the Misc. Case No. 422 of 2016 filed by the petitioner
was not pending as the same was dismissed for want
of prosecution and was not restored at the time of
passing the final order dated 09.10.2018 in M.N.R.
No. 82 of 2014, filed by the mother of the deceased.
(Para 31)

Writ Petition Rejected. (E-10)

List of Cases cited:

1. Pawan kumar Gupta Vs Ruchi Ramnag Dey 1999
(4) SCC 243
(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Mohd. Ali, learned counsel for the
petitioners, learned Standing Counsel appearing on
behalf of respondent No.3 and Sri Saurabh Tripathi,
learned counsel appearing on behalf of respondent
No.4.

2. By means of present petition, a challenge
has been made to the judgment and order dated
24.08.2021 passed by the Additional District Judge,
Court No. 1, Faizabad in Misc. Civil Appeal No. 56
of 2018 (Smt. Vandana Singh & Others Vs. Smt.
Kokila Singh & Others) which was filed against the
judgment and order dated 09.10.2018 passed by the
Additional Civil Judge, (Senior Division)/F.T.C.,
Faizabad in M.N.R. No.82 of 2014 (Smt. Kokila vs.
State of U.P.). A challenge has also been made to
the order dated 09.10.2018 which was assailed in
the Appeal No. 56 of 2018.

3. The prayer No. (ii) is consequential to
main prayer sought in the petition, which on
reproduction, reads as under:-

"to issue an order or direction for
setting aside the judgment and order dated
24.08.2021, passed by the Additional District
Judge, Court No.1, Faizabad, in Misc. Civil
Appeal No. 56 of 2018; Smt. Vandna Singh and
others Vs. Smt. Kokila Singh, together with the
order
dated
09.10.2018,
passed
by
the
Additional Civil Judge, (Senior Division)/F.T.C.,
Faizabad, in M.N.R. No. 82 of 2014; Smt. Kokila
Vs. State and others, to the extent so far as it
relates to grant of 1/5th share and issuance of
Succession Certificate to that effect in favour of
Smt.Kokila Singh, the opposite party No. 4,
pertaining to Bank deposit amount of the
deceased Ashwani Kumar Singh, as contained in
Annexure Nos.1 and 2 to this petition."

4. Assailing the orders, above mentioned,
learned counsel for the petitioners submitted that
Ashwani Kumar Singh, husband of petitioner
No. 1 and father of petitioner Nos. 2 to 4 was
maintaining his two accounts i.e. (i) Bank
Account No. 200156 (Old) [New Account No.
56640100000520]
of
Faizabad
Kshetriya
Gramin Bank, Branch Zila Panchayat, Faizabad
and (ii) Bank Account No. 01090051775 (Old)
[New Account No. 10961469703] of State Bank
of India, Faizabad. On 25.10.2006, the Ashwani
Kumar Singh was murdered. Thereafter, a Misc.
Case No. 422 of 2006 (Vandna Singh Vs. State),
under Section 372 of Indian Succession Act,
1925 (in short "Act of 1925") was instituted by
the petitioner(s). In this case, opposite No. 4
appeared and filed an objection. Subsequently,
opposite party No.4-Smt. Kokila, mother of the
deceased-Ashwani Kumar Singh, filed another
case under Section 372 of Act of 1925 registered
as M.N.R. No. 82 of 2014 (Smt. Kokila Vs.
State and others) with regard to same Bank
Accounts.

5. It is submitted that the case of the
petitioners
was
dismissed
for
want
of
prosecution vide order dated 16.07.2015 and on
coming to know about the said order, an
11 All. Smt. Vandana Singh & Ors. Vs. A.D.J., Court No. 1, Faizabad & Ors.
719
application for restoration was preferred by the
petitioners on 29.07.2015. On query being put,
learned counsel for the petitioners submitted that
the case has not yet been restored to its original
number and the next date fixed is 21.01.2022.

6. He submitted that during pendency of
the application for restoration, Trial Court
proceeded with the case i.e. M.N.R. Case No. 82
of 2014 and taking note of the fact that
application for restoration of Misc. Case No. 422
of 2006 is pending, petitioners preferred an
application under Section 10 of C.P.C. for
staying the proceedings of the suit. However, the
Trial Court without taking note of the facts
pleaded in the application preferred by the
petitioners under Section 10 C.P.C. as also the
law on the issue proceeded with the matter and
passed final order dated 09.10.2018.

7. He submitted that the Trial Court was
under obligation to stay the proceedings of the
case as the findings recorded by it would apply
as res judicata in subsequent suits including the
case filed by the petitioners, under Section 372
of the Act of 1925, in which restoration
application is pending and the next date fixed
therein is 21.01.2022.

8. In addition, it is stated that the findings
recorded by the Trial Court vide order dated
09.10.2018 would also affect the decision of the
suit filed by the father of the deceased in
Regular Suit No. 193 of 2007 (Narendra
Bahadur Singh & Others Vs. Executive
Engineer,
Provincial,
Division-2,
P.W.D.
Faizabad and Others).

9. He submitted that after the order dated
09.10.2018, petitioner(s) preferred an appeal i.e.
Misc. Civil Appeal No. 56 of 2018. However, the
Appellate Court, without taking note of spirit of
Section 10 of C.P.C., dismissed the appeal vide
judgment and order dated 24.08.2021, whereby
confirmed the order dated 09.10.2018 of Trial
Court.

10. As such, the judgment and order dated
09.10.2018 of the Trial Court as also the judgment
and order of Appellate Court dated 24.08.2021 are
liable to be interfered with.

11. He, in support of his case placed reliance
upon the judgment of Hon'ble Apex Court passed
in the case of Pawan Kumar Gupta vs. Ruchi
Ramnag Dey, reported in 1999 (4) SCC 243,
relevant paragraph on reproduction reads as
under:-

"16.
The
rule
of
res
judicata
incorporated in Section 11 of the Code of Civil
Procedure (CPC) prohibits the court from trying
an issue which "has been directly and substantially
in issue in a former suit between the same parties",
and has been heard and finally decided by that
court. It is the decision on an issue, and not a mere
finding on any incidental question to reach such
decision, which operates as res judicata. It is not
correct to say that the party has no right of appeal
against such a decision on an issue though the suit
was ultimately recorded as dismissed. The decree
was not in fact against the plaintiff in that first suit,
but was in his favour as shown above. There was
no hurdle in law for the defendant to file an appeal
against the judgment and decree in that first suit as
he still disputed those decisions on such contested
issues."

12. Considered the submissions advanced
by the learned counsel for the petitioner as also
learned
Additional
C.S.C.,
appearing
for
opposite party No. 3 and Sri Saurabh Tripathi,
learned counsel for the opposite party No.4.

13. From the aforesaid, it is apparent that
present petition relates to the succession of
properties of the deceased particularly movable
properties.
720 INDIAN LAW REPORTS ALLAHABAD SERIES

14. Admittedly, the deceased was Male
and was Hindu, as such, undisputedly, Hindu
Succession Act, 1956 (in short "Act of 1956")
would apply. It has not been stated in this
petition that the deceased prior to his death had
executed the will deed. Meaning thereby the
case of the petitioners is not based on will. Thus,
admittedly, deceased expired intestate. As such,
property of the deceased in this case would be
devolved in the manner prescribed under Section
8 of the Act of 1956, which provides General
Rules of Succession in the case of males, read
with the Scheduled appended to the Act of 1956.
Relevant provisions are quoted below for ready
reference:-

"8. General rules of succession in the
case of males.--The property of a male Hindu
dying intestate shall devolve according to the
provisions of this Chapter--

(a) firstly, upon the heirs, being the
relatives specified in Class I of the Schedule;

(b) secondly, if there is no heir of
Class I, then upon the heirs, being the relatives
specified in Class II of the Schedule;

(c) thirdly, if there is no heir of any of
the two classes, then upon the agnates of the
deceased; and

(d) lastly, if there is no agnate, then
upon the cognates of the deceased.

THE SCHEDULE
[Section 8]
HEIRS IN CLASS I AND CLASS II
CLASS I

Son; daughter; widow; mother; son of
a pre-deceased son; daughter of a pre-deceased
son; son of a predeceased daughter; daughter of
a pre-deceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a pre-deceased son of
a pre-deceased son; widow of a pre-deceased
son of a pre-deceased son.

CLASS II

I. Father.

II. (1) Son's daughter's son, (2) son's
daughter's daughter, (3) brother, (4) sister.

III. (1) Daughter's son's son, (2)
daughter's son's daughter, (3) daughter's
daughter's son, (4) daughter's daughter's
daughter.

IV. (1) Brother's son, (2) sister's son,
(3) brother's daughter, (4) sister's daughter.

V. Father's father; father's mother.

VI.. Father's widow; brother's widow.

VII. Father's brother; father's sister.

VIII. Mother's father; mother's mother.

IX. Mother's brother; mother's sister.

Explanation
:
In
this
Schedule,
references to a brother or sister do not include
references to a brother or sister by uterine
blood."

15. In the instant case, admittedly, the
deceased-Ashwani
Kumar
Singh
expired
intestate on 25.10.2006 leaving behind his WifeVandana Singh, minor daughters-Km. Anchal
Singh and Km. Khushi, minor son-Abhay Singh,
mother-Smt. Kokila and father-Sri Narendra
Bahadur Singh.

16. As per the provisions of Act of 1956,
indicated herein above, the wife, daught16.
er(s), son, and mother, named above, of the
11 All. Smt. Vandana Singh & Ors. Vs. A.D.J., Court No. 1, Faizabad & Ors.
721
deceased-Ashwani Kumar Singh being legal
heirs specified under Class-I of Schedule, are
entitled to share in the property of the deceased.

17. In the instant case, for the reasons
aforesaid, each legal heir, specified under ClassI of Schedule read with Section 8 of the Act of
1956, is entitled to 1/5th share in the property of
the deceased-Ashwani Kumar Singh. Needless
to say that father of the deceased being legal heir
specified under Class-II, as per Act of 1956,
would not inherit the property of the deceased.

18. The trial Court in the judgment and order
dated 09.10.2018 has recorded a finding that the
mother of the deceased is entitled only upto 1/5th
share and thereafter passed the order accordingly
for grant of Succession Certificate. Moreover, as
per this order, each petitioner is also entitled to 1/5
share in property of the deceased.

19. On the issue of share, when a query has
been put to the learned counsel for the petitioners,
he could not place any law before this Court in
which petitioners would be entitled for more than
the share what has been expressed by the Trial
Court in the judgment and order dated
09.10.2018.

20. Thus, in view of aforesaid, this Court
feels that no prejudice would be caused to the
petitioner on the basis of findings given by the
Trial Court and affirmed by the Appellate Court.

21. Needless to say that the preliminary
source of legal provisions of Section(s) 10 and 11
of C.P.C. is based on the concepts of ResSubjudice and Res-Judicata.

22. 'Res' means every object of right that
proves the subject matter in a particular case. In
Latin, the expression 'Sub-Judice' means "Under a
judge" or in other words, a matter "under
consideration". It means a cause that is under trial
or pending before a Court or Judge.

23. The doctrine of Res-Judicata prohibits
the second trial of the same dispute between the
same parties. This doctrine prevents the trial of a
suit or issue if by a decision in earlier suit
between the same parties or their successors, the
issue(s) are settled.

24. This case relates to Section 10 of
C.P.C. as such principles of Res Sub-judice
would apply. The expression 'Res Sub-Judice' is
Latin maxim which means "under judgment".
The rule of the Sub-Judice is based on the public
policy which prohibits the plaintiff to file two
parallel cases on the same subject matter and
restricts the chances of having two contradictory
judgments by the two courts. The purpose of the
doctrine of Res Sub-Judice is to prevent a
multiplicity of the proceedings and to refrain
two conflicting decisions. The doctrine bars the
parallel trial of the suit where the matter is
pending to adjudicate in the former suit but it
does not restrict in filing the subsequent suit.
The primary aim of this doctrine is to prohibit
the courts of concurrent jurisdiction from
simultaneously
entertaining
two
parallel
litigations. In case of two or more cases, pending
between the same parties in the same subject
matter, the competent court has power to stay
the proceedings.

25. Considering the issue involved in this
petition, it would be appropriate to refer Section
10 of C.P.C., the same reads as under:-

"10. 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 the Central Government and
722 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

26. Section 10 of C.P.C. states that no court
will initiate the trial of any suit if the issues are
directly or substantially related to the previously
instituted suit between the same parties or parties
litigating on behalf of them under the same title
and the matter is pending before the court having
the competent jurisdiction in the territory of India
or any court beyond the limits of India
established by central governments having the
same jurisdiction or before supreme court. If
parallel suits come before the competent court,
section 10 gives the power to put a stay on the
proceedings in another court. Section 10 prohibits
the trial of parallel litigation where the same
cause of action arises between the same parties on
the same subject matter. Section 10 bars the two
parallel litigation between the same parties on the
same cause of action. The basic reasoning behind
this provision is to prevent wastage of courts
resource, protect the right of the litigant, reduce
the burden on courts and avoid two contradictory
decision. This provision was inserted in C.P.C. to
meet the end of the justice and prevent abuse of
the court.

27. It appears from the aforesaid that for
application of Section 10 of C.P.C. the following
are necessary condition:-

(a) There should be two suits.

(b) The suits must be between the
same parties or their successors.

(c) The matter in the issue in the later
suit must be directly and substantially the same
as in the previous suits.

(d) Both the suits should be pending
before the court of law.

(e) The parties must be litigating under
the same title in both the suits.

28. From the aforesaid, the objective
behind Section 10 in C.P.C. can be deduced as
under:-

(i) To prevent parallel litigation
between the same parties on the same
issue/subject matter.

(ii) To reduce the burden on the courts
as also to prevent wastage of time of the Courts.

(iii) To avoid contradictory decisions
on the same issue/subject matter.

(iv) To protect the rights of other
party.

29. In earlier part of this judgment, this
Court has already held that the findings,
regarding share in the property of the deceased,
recorded by the Trial Court are just and proper
and being so no prejudice would be caused to
the petitioners. As such, to the view of this
Court, the decision in the case filed by the
petitioners under Section 372 of the Act of 1925,
which was not pending on 09.10.2018 (the date
on which the case filed by mother of the
deceased under Section 372 of the Act of 1925
was allowed) as the same was dismissed for
want of prosecution on 16.07.2015 and has yet
not been restored to its original number, would
not be contradictory.

30. After considering the principle of Res
Sub-judice and Section 10 of C.P.C., this Court,
in earlier part of this judgment, has observed
regarding requirement of necessary condition for
application of Section 10 of C.P.C. as also its
objective.
11 All. M/s Pan Realtors Pvt. Ltd. Vs. State of U.P. & Ors.
723

31. In this case, admittedly, the Misc. Case
No. 422 of 2016 filed by the petitioners was not
pending as the same was dismissed for want of
prosecution on 16.07.2015 and was not restored
at the time of passing the final order dated
09.10.2018 in M.N.R. No. 82 of 2014, filed by
the mother of the deceased.

32. From the aforesaid, it is crystal clear
that one essential/ necessary requirement for
applying Section 10 of C.P.C. was not present at
the time of passing the impugned order dated
09.10.2018 which is to the effect that "Both the
suits should be pending before the Court of
Law". As such, this Court is of the view that the
Trial Court rightly decided the subsequent case.

33. Upon due consideration of aforesaid
particularly the findings recorded by this Court
on the issue of contradictory decision and
missing of one essential condition for applying
the provisions of Section 10 of C.P.C., this
Court is of the view that no interference in
impugned orders is required in exercise of
powers under Article 227 of the Constitution of
India.

34. Accordingly, the writ petition is
dismissed. No order as to costs.
----------
(2021)12ILR A723
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.11.2021

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Misc. Single No. 27631 of 2021

M/s Pan Realtors Pvt. Ltd. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Abhishek Khare, Apoorva Tewari
Counsel for the Respondents:
C.S.C., Waseeq Uddin Ahmed

A. Maintainability - U.P. Urban Planning &
Development Act, 1973: Section 41(3) -
U.P.
Industrial
Development
Area
Act,
1976: Section 12 - Indian Constitution,
1950: Article 226, 227 - The Court examined
whether an "Authority" i.e., " State Government"
under Section 41(3) of the Act of 1973 is a
"Tribunal" or not. On perusal it is ascertained
that the power of adjudication is conferred upon
to the 'State Government' is by the statute, the
'State Government' is under obligation to act
judicially and is also required to follow principle
of natural justice, the 'State Government' in this
aforesaid sub-section decides the lis between the
parties and decision of the 'State Government'
under this sub-section is binding and final. Thus,
having satisfied all the parameters/tests, the
Court concluded that the 'State Government'
under 41(3) of the Act of 1973 is a 'Tribunal'.
(Para 20)

Under Article 227, the High Court exercise the power
to correct the errors of jurisdiction and not to upset
pure prior findings of facts. (Para 23)

Petition Disposed of. (E-10)

List of Cases cited:

1. Associated Cement Companies Ltd. Vs P.N. Sharma
& anr. AIR 1965 SC 1595

2. Haji Manzoor Ahmed & anr. Vs State AIR 1970
Allahabad page 467

3. All Party Hill Leaders Conference Vs Captian W.A.
Sangma (1977) 4 SCC 161

4. St. of Guj.Vs Gujarat Revenue Tribunal Bar Assn.
(2012) 10 SCC 353: (2012) 4 SCC (Civ) 1229: (2013)
1 SCC (Cri) 35: (2013) 1 SCC (L&S) 56: 2012 SCC
OnLine SC 874 page 365

5. Aidal Singh Vs Karan Singh AIR 1957 All 414 (FB)

6. Kihoto Hollohan Vs Zachillhu 1992 Supp (2) SCC
651 page 705

7. Umaji Keshao Meshram Vs Radhikabai 1986 (Supp)
SCC 401