A. Subramania Mudaliar vs V.G. Subramania Battar and 5 others

Defendant in O.S.No. 12 of 1995, on the file of District Magistrate-cum-Judicial Magistrate, Vilathikulam, is the revision petitioner.

The suit was originally filed on the file of District Munsif''s Court, Kovilpatti as O.S. No.10 of 1991 and subsequently, on the formation of new

courts, it was transferred to Vilathikulam Munsif''s Court and renumbered as O.S.NO. 12 of 1995. Plaintiffs filed the suit for declaration that they

are the absolute owners of the property and to restrain the defendant from interfering with their possession.

It is admitted that there was an earlier suit filed by defendant as O.S. No.258 of 1985, on the file of District Munsifs Court, Kovilpatti, and a

decree was passed in favour of petitioner herein. The matter was taken in second appeal before this Court in Second Appeal No.1693 of 1995,

and the same is pending. In view of pendency of the second appeal, all proceedings have been stayed u/s 10, C.P.C. The reason for filing this

revision is, an interim order was obtained by respondents herein from changing the nature of the property. Alleging violation of the interim order,

they wanted to initiate contempt proceedings against the defendant. They also filed I.A. 268 of 1998 to re-issue a commission to ascertain whether

any change of circumstance was there, after the injunction order was obtained. The same was seriously opposed by petitioner, and the main

ground of objection was that since the suit has been stayed u/s 10, C.P.C., ail proceedings are to be stayed, and the lower Court has no

jurisdiction even to take into consideration the interlocutory applications. The lower Court did not accept this contention, and the Commissioner

was permitted to inspect the property and file his report. The same is challenged in this revision.

After receipt of notice, respondents also entered appearance, and I heard learned counsel on both sides.

The only point urged by learned counsel for petitioner is that when proceedings have been stayed u/s 10 of Code of Civil Procedure, the lower

Court should not have passed the impugned order directing the Commissioner to visit the property. I do not think that the submission of learned

counsel could be accepted.

In Amita Kaushish and Others Vs. Sanjay Kaushish and Others, , the Honour-able Supreme Court has held thus:-

The impugned Order is only a direction to list the appeal FAO (O.S.) No.221 of 1991 filed by the appellants for disposal pending in the High

Court. The Division Bench, by its order dated July, 12 1994, directed to list the appeal for final hearing on October, 17 1994 within first five

cases. It would appear that there is long drawn litigation inter se parties. Since the time fixed by the High Court is already over and appeal is yet to

be disposed of, we request the High Court to appropriately fix an early date for disposal, preferably before the end of this year.

The learned counsel for the respondents stated that on account of the stay of the suit, his clients are prevented to take any direction or order by

way of interlocutory application. The stay of the trial of the suit does not preclude the respondents to seek such appropriate interlocutory reliefs as

may be available and warranted in the facts and circumstances."" (Italics supplied)

In Indian Bank Vs. Maharashtra State Co-operative Marketing Federation Ltd., , the Honourable High Court considered the scope of Section

10, C.P.C. and in para 8, it has been held thus:-

Therefore, the word ""trial"" in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the

prohibition to ''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.

The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits

and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the

jurisdiction of the Court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to. the

institution of a suit. It has been construed by the Court as not a bar of the passing of interlocutory orders such as an order for consolidation of the

later suit with the earlier suit, or appointment of a receiver or an injunction or attachment before judgment. The course of action which the Court

has to follow according to Sec. 10 is not to proceed with the ''trial'' of the suit but that does not mean that it cannot deal with the subsequent suit

any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of

interlocutory orders, it has to be stated that the word ''trial'' in Section 10 is not used in its widest sense."" (Italics supplied)

In Rameshwar v. Vth Addl. District Judge, Basti, 1999 All. L.J 22. Their Lordships of that High Court have considered a similar question in

detail and have held thus:-

Our experience shows that on many occasions for some reason or other further proceedings are stayed. In order to carry on the process of the

suit, certain steps are to be taken in aid of the proceedings or any other measures to keep the proceedings alive. The purpose of grant of stay is not

the purpose to delay the process. If the interlocutory matters are decided and the suit is kept ready to proceed further as soon as the stay of further

proceeding cease to be operative from a stage which could have arrived to ripen the case by disposing of interlocutory matter in between without

affecting the merit of the case would be in aid of the judicial process and as such not unwelcomed. On the other hand, it would shorten the time

and help the parties to make the suit ready. Shri P.P.Chaudhary, learned counsel for the petitioner has relied on the decision in the case of

Madanlal Agarwal Vs. Smt. Kamlesh Nigam, in support of his contention that in view of such stay order, the Court may not proceed with the trial

of the suit on merits, but it can Certainly take such other steps which are collateral or which may be protective or which may be proposed for

keeping this alive, such as in application under Order 22, Rule 3 or 4 or application under Order 39, Rule 1 or 2 or application under Order 40,

Rule 1, or application under Order 38, Rule 6 of the Code of Civil Procedure, would be maintainable before the trial Court in spite of stay of such

suit.

The decision of the Madhya Pradesh High Court has relied upon by the Calcutta High Court in the case of Dilip Kumar Biswas Vs. Kamalendu

Chanda, . In the said case, pending stay granted by the superior Court, an application for interim injunction was filed. On this context, the Calcutta

High Court has held that an order of stay granted by the superior Court does not preclude the trial court from entertaining an application of an

urgent nature namely, application for temporary injunction, application for appointment of receiver, application for attachment before the judgment

and the like, although the trial Court would have no jurisdiction to proceed with the trial of the suit on merits and had thus agreed with the reasoning

in the case of Madanlal Agarwal Vs. Smt. Kamlesh Nigam, of the Madhya Pradesh High Court.

Similar view was taken by the Apex Court in the case of Amit Kaushish v. Sanjay Kaushish, 1995 (8) SCC 507. In the said decision, it has been

held that the stay of trial does not preclude the respondents to seek such appropriate interlocutory reliefs as may be available and warrant in the

facts and circumstances of the case.

Having drawn inspiration from the aforesaid decisions, to my mind, it appears that such right is not confined only to the respondents but is available

to both the Parties for the purpose of keeping the proceeding alive and to allow it to progress and also to obtain necessary orders in respect of

interlocutory matter which are of imperative necessity depending on the facts and circumstances of the case having regard to the dispute pending

before the superior Court and the impact of the decision of such interlocutory or other matters and the merits of the suit or the proceeding itself

affecting the decision as observed earlier... "" (Italics supplied)

In V.P. Vrinda v. K. Indira Devi and others, 1994 (1) K.L.J 614 a learned Judge of the Kerala High Court accepted the meaning of the word

''trial'' as given in Black''s Law Dictionary V Edition at page 1348. The dictionary meaning reads thus--

A judicial examination and determination of issues between parties to action. Gulf, C & S.F. Ry. Co.v. Smith. Okl. 270 P.2d 629, 633; whether

they be issues of law or of fact, Pulaski v. State, 23 Wis. 2d 138, 126 N.W, 2nd 625,628. A judicial examination, in accordance with law of the

land, of a cause, either civil or criminal, of the issues between the parties, whether of law or fact, before a court that has proper jurisdiction.

In paragraph -12 of the judgment, it has been held thus

..."" even if the trial of the suit is stayed, the court will be entitled to pass interlocutory orders in the nature of injunction, appointment of receiver or

an order of attachment before judgment, inso-far as a petition under Order 39, Rule 1, CPC is concerned, the court would be concerned only with

prima facie case, irreparable loss and injury, and balance of convenience. A finding one way or other in that aspect need not affect the

consideration of the issues in the suit. An enquiry as regards the aspect cannot be treated as trial within the meaning of Section 10, CPC.

Therefore, a stay of trial of the suit u/s 10, CPC cannot bar the court from entertaining such an interlocutory application.

Shivaraj Patil, J. (as he then was), in the decision reported in K.S. Arumugha Gounder Vs. Pavayammal and Others, has also taken a similar

view that even if the. trial of the suit is stayed, u/s 10, C.P.C., that will not bar the Court from entertaining or passing orders on interlocutory

applications. In that case, the learned Judge, while confirming the order of stay of trial of the suit, directed the lower Court to pass orders on the

injunction application.

I also had occasion to consider a similar question in the decision reported in K. Balu and others Vs. Madasamy and others, .

The same view has been expressed by the Patna High Court in the decision reported in Smt. Lakshmi Devi Vs. Rajendra Prasad Sao and

Others, , and also the Bombay High Court in the decision reported in Sujanbai Haribhau Kakde and Others Vs. Motiram Gopal Saraf and

Another, .

In view of the settled legal position, I do not think that the contention of learned counsel for petitioner could be accepted. The Civil Revision

Petition is without merits and is, therefore, dismissed C.M.P. No. 12410 of 1999 for stay is also dismissed.