Biswanath Mondal vs Sulekha Roy & Ors.

Inspite of service none appears on behalf of the opposite parties to oppose this application.

The revisional application under Article 227 of the Constitution of India is at the instance of the defendant no. 1 in a suit for partition and is directed against order dated August 4, 2016 passed by the learned Civil Judge, (Senior Division), 5th Court at Alipore in Title Suit No. 164 of 2013.

The learned trial Judge by the order impugned has dismissed the application filed by the petitioner praying stay of all further proceedings of the suit till the disposal of the suit for partition being Title Suit No. 53 of 2003 filed by the opposite party nos. 30 and 31.

The petitioner in his application under Section 10 read with Section 151 of the Code of Civil Procedure filed in Title Suit No. 164 of 2013 contended inter alia that a prior suit for partition being Title Suit No. 53 of 2003 is pending between the selfsame parties of the present suit in respect of the selfsame properties. The opposite parties in their written objection to the said application did not specifically deny the said allegation of the petitioner. The learned trial Judge dismissed the said application on the grounds that the Mouza of the suit property of Title Suit No. 53 of 2003 is Nonadanga and the police station of the said suit property has been mentioned as Tollygunge (Old) now under Police Station Tiljala, whereas the schedule of the plaint in connection with the Title Suit No. 164 of 2013 the name of the police station has not been mentioned in respect of the suit schedule 'A' and 'B' property, the Mouza Nonadanga has been inserted in the schedule of the plaint of Title Suit No. 164 of 2013 by some correction without being any signature against such correction and the learned Trial Judge has jurisdiction over both the suits therefore the later suit cannot be stayed on the ground of pendency of an earlier suit.

A suit seeking partition of some immovable properties cannot allowed to be proceeded with pending a suit seeking partition of the selfsame property nstituted earlier.

The learned trial Judge is under complete misconception of the scope of the provisions of Section 10 of the Code inasmuch as the decision of Title Suit No. 53 of 2003 would certainly operate as res judicata affecting the maintainability of the later suit being Title Suit No. 164 of 2013.

In view of the discussion made the order impugned is set aside. The application filed by the petitioner under Section 10 of the Code is hereby allowed. All further proceedings of the Title Suit No. 164 of 2013 shall remain stayed till the disposal of Title Suit No. 53 of 2003.

C.O. No. 3048 of 2016 is disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.