Dr. Y.S. Bhatnagar and Others vs Shri Jitendra Singh Negi and Others

V.K. Bist, J.—Present petition has been filed by the petitioners for the following reliefs:

Issue a writ, order or direction in the nature of certiorari quashing the order dated 05.04.2010 contained as annexure No. 1 to the writ petition,

Issue a writ, order or direction in the nature of mandamus restraining the respondent Nos. 1 to 10 in the suit from interfering and controlling the finances and in the management of the affairs of all the education activities of the respondent No. 19 and conduct any meeting of the governing body of respondent No. 19 or managing committees under the said governing body and make any new members or conduct any election of the same, and create any third party interest in the property where educational activities of the respondent No. 19 is operative till the disposal of the suit,

Issue a writ, order or direction in the nature of mandamus for appointment of receiver for management, protection, preservation and prevention of wastage of finances and smooth running of various institutions of respondent No. 19 for its realizations, management, preservation and improvement upon institutions till the disposal of the rights of the parties in the suit for the management of the various institutions of the respondent No. 19,

Issue an ad-interim mandamus to the aforesaid effect,

Issue a writ, order or direction which this Hon''ble Court may deem fit and proper under the circumstances of the case may kindly be passed,

Award the cost of the petition.

Brief facts, which emerge out of the record, are that for providing education to women, in the year 1902 an institution was started by Sri Jyoti Swaroop Bhatnagar with his wife Smt. Mahadevi in the name and style of ''Kanya Pathsala'', at their residence 38, Subhash Road, Dehradun. The said institution was lateron established at 10, New Road (Amrit Kaur Road), Dehradun. For managing the affairs of the institution, a society, namely ''Kanya Pathsala Trust and Management Society'' was constituted. The institution was developed and today it has reached to a stage where the society is running and managing the Inter College, Post Graduate College and Institute of Technology and now the name of society is changed as ''Mahadevi Kanya Pathsala College'' (hereinafter referred to as the Society). At present, the Society is running three institutions, which are constituted in accordance with the statutes of the H.N.B. Garhwal University, the Uttaranchal School Education Act, 2006 and under the A.I.C.T.E. respectively. It is asserted that Smt. Mahadevi died in the year 1914, during the lifetime of Shri Jyoti Swaroop Bhatnagar. Shri Jyoti Swaroop Bhatnagar executed a registered WILL on 22.04.1920 by which all the properties were bequeathed to his younger brother Shri Rai Bhadur Harshswaroop Bhatnagar. It is stated that the petitioners are the heirs and blood relatives of Shri Rai Bhadur Harsh Swaroop Bhatnagar. It has further been stated that Shri Jyoti Swaroop Bhatnagar and Smt. Mahadevi Bhatnagar were blessed with only daughter namely Srimati, who died in the year 1916, during the lifetime of Shri Jyoti Swaroop Bhatnagar. The first constitution of the Society was registered in the year 1906 in which it was prescribed that at least one representative of the founder family would be there in the governing body so that the institutions may run and be managed in the supervision of the founder family members. After the death of Shri Jyoti Swaroop Bhatnagar, his brother Shri Harshswaroop Bhatnagar remained the member of the Governing Body, Management and Board of Trust and after his death, the members of the family of Shri Harshswaroop Bhatnagar remained as member of Governing Body and Management as the representative of the founder family. The details in that regard are mentioned below:

Sh. Gyanswaroop S/o Sh. Harswaroop, from year 1923 to 1962,

Sh. Brahmswaroop S/o Sh. Harswaroop, from year 1962 to 1969,

Sh. Hemendraswaroop S/o Sh. Harswaroop, from year 1969 to 1980,

Sh. M.S. Bhatnagar S/o Sh. Brijendraswaroop (grandson of Raibahadur Harswaroop), from year 1980 to 1994,

Dr. Y.S. Bhatnagar S/o Sh. Brhamswaroop (grandson of Raibahadur Harswaroop), from year 1994 to 1995.

Sh. A.K. Bhatnagar S/o Sh Hemendra Swaroop (grandson of Raibahadur Harswaroop), continuous since 2007 (only as member of governing body),

Dr. N.S. Bhatnagar S/o Sh. Brahmswaroop (grandson of Raibahadur Harswaroop), continuously since 1995.

It is stated in the writ petition that at no point of time, there was any dispute regarding the representation in the family, but the constitution was amended on 25.03.2007 (annexure No. 6 to the writ petition) without informing the petitioners changing the basic character of the constitution and the new conditions were incorporated. By the said amendment, the Governing Body changed the condition of the representative of founder family and new condition was incorporated in its place that two representative of the family of founder Jyoti Swaroop Bhatnagar and his wife Smt. Mahadevi Bhatnagar were included. The Governing Body also added one more condition i.e. one representative of founder family, to be chosen by the blood relations of founders and also imposed following condition:

5.8 Blood relations of the founder Shri Jyoti Swaroop Bhatnagar and wife Smt. Mahadevi Bhatnagar, who are in a position to take active interest in the affairs of the society, shall fill up a personal information form (PIF), which shall also give their relationship with the founders. A list of such active relations shall be maintained by the representative of the founders family and the Secretary of the society. Founders family representative on the managing committee shall invite, before the election of the managing committee the active blood relation of the founders to choose two members of the governing body and one of them to the managing committee for the tenure of the managing committee, and will convey their names and details of address, contact numbers etc. to the Secretary of the managing committee.

It has been further stated in the writ petition that in the year 2004 there were 1200 members which were increased to 1450 in the list issued in the year 2007, but in the meeting held on 25.03.2007 i.e. the date when the said amendment was incorporated, only 36 members were shown to be present and in the subsequent meeting of approval only 24 members were present. On 19.03.2010, the petitioners instituted Original Suit No. 108 of 2010, before the Civil Judge (Sr. Div.), Dehradun for declaring the committee as powerless, ineffective, illegal and void w.e.f. 16.08.2009 and also for permanent injunction restraining the defendant Nos. 1 to 11 from interfering in the working of the institution run by the Society. Alongwith the petition, the petitioners also filed two applications before the Trial Court. One application (i.e. 6-c2) was filed for restraining the defendant Nos. 1 to 10 in the suit from interfering and controlling the finances and in the management of the affairs of all the education activities of the defendant No. 19 and conduct any meeting of the governing body of defendant No. 19 or managing committees under the said governing body and make any new members or conduct any election of the same, and create any third party interest in the property where educational activities of the defendant No. 19 is operative till the disposal of the above suit. Another application (i.e. 9-c2) was filed by the petitioners praying for appointment of receiver in the above suit for management, protection, preservation and prevention of wastage of finances and smooth running of various institutions of defendant No. 19 for its realizations, management, preservation and improvement upon institutions till the disposal of the rights of the parties in the above suit for the management of the various institutions of the defendant No. 19. After filing the suit, the Court below issued notices to the defendants on the above applications filed by the petitioners. Being aggrieved with the order of Trial Court, the petitioners preferred Writ Petition No. 409 (M/S) 2010 before this Court which was finally decided by this Court on 26.03.2010 directing the learned Civil Judge (Sr. Div.), Dehradun to decide the application No. 6-C2 of the writ petitioner/plaintiff on the date fixed or within one week thereafter. The Trial Court was also directed to decide the application No. 9-c2 expeditiously. Thereafter, the Trial Court instead of deciding 6-c2 and 9c-2 applications, decided another application, 55-c2 moved by the respondent Nos. 1 to 11 & 19, u/s 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C.) on 05.04.2010 and stayed the proceeding of Civil Suit No. 108/2010 holding that the reliefs claimed in both the suits are directly and substantially same and that all the parties of both the suits are same. The Trial Court ordered for listing of Suit No. 604/2009 on 30.04.2010. Aggrieved by the order dated 05.04.2010, present petition has been filed.

The respondent Nos. 1 to 11 and 19 filed their joint counter affidavit in which refuting the averments made in the petition the respondents, interalia, have stated that all the properties of Shri Jyoti Swaroop Bhatnagar were not bequeathed to Shri Rai Bahadur Har Swaroop Bhatnagar. The petitioners are not the heirs and blood relatives of Shri Har Swaroop Bhatnagar. It is stated in the counter affidavit that the facts mentioned in Original Suit No. 604/2009 ''Mahadevi Kanya Pathshala and Anr v. Shri Jitendra Singh Negi'', pending in the Court of Civil Judge (Sr. Div.), Dehradun are identical to the facts mentioned in Original Suit No. 108/2010 ''Dr. Y.S. Bhatnagar and Ors. v. Jitendra Singh Negi and Ores.'' which are to be adjudicated in the earlier OS No. 604/2009. It is also stated that the present petition has been filed against the order dated 05.04.2010 passed in OS No. 108/2010 whereby application u/s 10 C.P.C. filed by the respondent is allowed and proceedings of OS No. 108/2010 have been stayed till the pendency of OS No. 604/2009. The respondents have filed their written statement alongwith the documents in OS No. 604/2009. In OS No. 604/2009 Shri Narendra Swaroop Bhatnagar, under whose name and title the present petitioners are contesting OS No. 108/2010, also filed application for temporary injunction with the same relief as prayed in OS No. 108/2010 and also filed an application for appointment of receiver, to which the respondents filed their objection but the Trail Court vide order dated 23.01.2010 has dismissed both the applications filed in OS No. 604/2009 i.e. for temporary injunction and for appointment of receiver. It is further stated in the counter affidavit that all the controversies are covered in the earlier OS No. 604/2009. and all the petitioners in the present petition and Shri N.S. Bhatnagar are deriving rights through Late Shri Brahma Swaroop Bhatnagar.

I have heard Shri Paresh Tripathi and Shri C.K. Sharma, Advocates for the petitioners, Shri Neeraj Garg, Advocate for respondents and perused the record.

Shri Paresh Tripathi, the learned Counsel for the petitioners assailed the impugned order on the ground that reliefs prayed in the present suit are altogether different to that of the relief prayers in the earlier suit as previous suit was filed by Dr. N.S. Bhatnagar (respondent No. 17 in the present petition) whose plaint discloses that he has raised the grievances merely against the ouster of the President of the Society and all the institutions being run and managed by the Society and other reliefs are ancillary. The later suit has been filed by the petitioners and they have nothing to do about the Presidentship of the Society or the Presidentship of the institutions being run and managed by the Society, but they are aggrieved against the illegal decision taken subsequent to 16.08.2009. He argued that petitioners'' suit could not have been stayed taking recourse of Section 10 of C.P.C. as there is no similarity in the suit filed by Dr. N.S. Bhatnagar and in suit filed later. He submitted that the relief clause in both the suits are different. The defendant Nos. 1 to 3 filed application No. 55-c2 u/s 10/151 and Order-7 Rule 10 & 11 of the C.P.C. and the petitioners submitted their objection, but the Trial Court proceeded to exercise the powers u/s 10 of the C.P.C., ignoring the fact that the matters in both the suits are entirely different, as neither the issue raised was between the same parties nor any of the parties claimed litigating under the same title. He further argued that both the suits are instituted for different cause of action, for different issues and are not under the same title under whom the plaintiff of the previous suit claimed litigation, hence Section 10 of C.P.C. was not, at all, attracted. Learned Counsel for the petitioners further submitted that the respondents, in order to grab the property, are creating third party rights over the property. He prayed that the respondents may be restrained from creating any third party right over the properties of the founders family that Premier Institution is not ruined and its finances be not misused.

Shri Paresh Tripathi, the learned Counsel for the petitioners further argued that Section 10 of C.P.C. mandates that the earlier suit must be between the same parties and that the suit must be between the parties under whom they or any of them claim litigation under the same title, but the said contingency is altogether absent in the present suit. Referring para-8 of the judgment rendered by the Apex Court in National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, , the learned Counsel for the petitioner submitted that the Section 10 of C.P.C. can be attracted only when a final decision of a previous suit would operate as res-judicata in the subsequent suit. He submitted that in the light of the landmark judgment of Hom''ble the Supreme Court, it is evident that in the present case there is no such contingency available in the petitioners'' suit warranting the invocation of powers conferred u/s 10 of C.P.C. He argued that the learned Court below failed to follow the legal position regarding the fundamental test to attract Section 10 of C.P.C. and, thus the impugned order stands legally vitiated and deserves to be set-aside. Learned Counsel for the petitioners further argued that the learned Trial Court has also failed to appreciate that Section 10 of C.P.C. does not, in any manner, put an embargo on the powers of the Court to examine the merits of the matter. In this regard he invited attention of this Court towards para-4 of the judgment rendered by Hon''ble Apex Court in Pukhraj D. Jain and Others Vs. G. Gopalakrishna, . Placing reliance in the judgment of Hon''ble Supreme Court in Indian Bank Vs. Maharashtra State Co-operative Marketing Federation Ltd., , the learned Counsel for the petitioner argued that the learned Trial Court has also failed to consider that the bar u/s 10 C.P.C. is a rule of procedure and it does not affect the jurisdiction of the Court to deal with the later suit nor it creates any substantive rights in the matter and it is not a bar to passing interlocutory orders or appointment of receiver or an injunction or attachment before the judgment and word ''trial'' does not mean that the Court cannot deal with the subsequent suit any more or for any other purpose.

Refuting the arguments advanced by the learned Counsel for the petitioners Shri Neerag Garg, the learned Counsel for respondents submitted that Section 10 of C.P.C. speaks that it is for the sake of convenience of parties and procedure of the Court to stay the proceedings of subsequent suit in which matter is directly substantial in issue in previously instituted suit between the same parties or parties under whom they or any of them claiming litigation under the same title. He submitted that in such cases, it is to be scrutinized that whether the matter in issue is directly and substantially same in subsequent suit and whether the parties or parties under whom they or any of them claiming litigating are same in both the suit or not. He submitted that the plaintiff in Suit No. 108/2010 are claiming those to be blood relation of the found member of the Society who are deriving their rights as a blood relation of the founder member of the Society from Shri Har Swaroop Bhatnagar-brother of founder member Shri Jyoti Swaroop Bhatnagar. In Suit No. 604/2009 M.K.P.P.G. College Society is the plaintiff of which the present petitioners i.e. plaintiffs of subsequent suit are also the members. The plaintiff No. 2 of previous suit Dr. N.S. Bhatnagar, who is the defendant No. 17 in Suit No. 108 of 2010, is also the son of Shri Brahm Swaroop Bhatnagar, is the son of Shri Har Swaroop Bhatnagar who was the real brother of Shri Jyoti Swaroop Bhatnagar, therefore plaintiff of Suit No. 108/2010 and plaintiff of Suit No. 604/2009 are deriving their rights firstly as blood relation of founder member of the Society, being the legal heir of Shri Har Swaroop Bhatnagar and secondly, as the members of the Society. Once Society is plaintiff in Suit No. 604/2009, all the members of the Society are being represented and fall within the ambit of plaintiff in Suit No. 604/2009, including the plaintiff in Suit No. 108/2010. In this regard he placed reliance in the decision of Hon''ble the Apex Court in Harbans Singh and Others Vs. Sant Hari Singh and Others, .

Shri Neeraj Garg, the learned Counsel for the respondents has further submitted that the matter in issue in both the suits i.e. mismanagement in the Society and ousting the representative of founder member of Society Dr. N.S. Bhatnagar, is involved in both the suits, which is purely same on facts and suit No. 108/2010 is repetition of the contents of suit No. 604/2009. The plaintiff Dr. N.S. Bhatnagar in suit No. 604/2009 filed application for temporary injunction and appointment of a Receiver seeking the relief that defendant/respondents be restrained from using funds of the Society without prior permission of the Court and also not to do the ministerial acts and Dr. N.S. Bhatnagar be appointed as Administrator/Custodian of the Society till the disposal of the suit, which was dismissed by the Court below. The petitioners in collusion with Dr. N.S. Bhatnagar plaintiff No. 2 in suit No. 604/2009, filed the subsequent suit on the same footing and seeking the same relief in which the Trial Court after examining the matter has rightly invoked Section 10 of C.P.C. and rightly allowed the application of the respondents filed u/s 10 of C.P.C. thereby staying the proceedings of suit No. 108/2010. learned Counsel for the respondents argued that admittedly the MKP (PG) College Society is registered Society and is governed by provisions of Section 12, 13A, 13B, 24 and 25 of the Societies Registration Act and it is the Registrar to put a check on mismanagement of the affairs of the Society or misappropriation of the funds and any kind of illegality in appointment of any member of the Society and to detect at to whether the Society is running according to its object or not. Therefore the suit No. 108/2010 is barred by the provisions of Societies Registration Act and declaration sought by the petitioners cannot be granted. He argued that the law cited by the petitioners are not applicable in the instant case as matter in issue before the Hon''ble Court in the said judgments were entirely different which has no resemblance to the controversy involved in the present case. He submitted that the learned Trial Court has rightly allowed the application to avoid any contrary findings. He lastly argued that the judgment and decree passed in the earlier suit will definitely operate as res-judicata to the subsequent instituted suit No. 108/2010 instituted by so called blood relations of the founder members of the Society, who are the members of MKP (PG) College Society, which is the plaintiff in suit No. 604/2009. Shri Neeraj Garg, Advocate also submitted that Section 10 of C.P.C. should be read alongwith Explanation 6 of Section 11 C.P.C. which provides that where persons litigate bonafide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right, shall, for the purposes of section (i.e. Section 11 C.P.C.), be deemed to claim under the persons so litigating. He argued that from a combined reading of Section 10 C.P.C. with Explanation 6 of Section 11 C.P.C. and law laid down by the Apex Court and memo of parties of both the suits, it is clear that the plaintiffs in Suit No. 108/2010 and plaintiffs in Suit No. 604/2009 are having common rights to all of them and are litigating under the legal heir-ship and blood relationship of late Har Swaroop Bhatnagar.

Shri Paresh Tripathi, the learned Counsel for the petitioners in his rejoinder arguments has submitted that the genesis of the petitioners'' suit is that by an illegal resolution dated 30.11.2009 adopted by the respondents, the representative of founder family, the petitioner have been ousted and the alleged committee has become defunct since 16.08.2009, while the suit of the respondent No. 17, as evident, confines to his ouster from the post of President. He submitted that when the dispute regarding ouster of the President, in the earlier suit and the grievances of the members, in the former suit and for the representation of the founders family is raised, certain facts are bound to be common upto some extent, but, in no case, the same attracts the provisions of Section 10 C.P.C. He submitted that the grievances of the petitioners are entirely different than that of the plaint of the previous suit. He argued that it is also erroneous to contend that the petitioners are contesting under the name and title of respondent No. 17 and the order dated passed 23.01.2010 passed in earlier suit by respondent No. 17, has nothing to do with the petitioners'' case, as the same cannot be said to be constituting res-judicata in the petitioners'' case.

The only question for determination is whether matter in issue in suit No. 108/2010 is directly and substantially in issue in suit No. 604/2009 and parties in both the suits are same. For proper appreciation, details of the parties as well as prayer made in both the suits are being narrated as under:

Suit No. 604 of 2009

PARTIES

Mahavevi Kanya Pathsala College, Through its President Dr. N.S. Bhatnagar, President Managing Committee MKP College Society, Dehradun, 10 New Road, Dehradun.

Dr. N.S. Bhatnagar, President Managing Committee MKP College Society, Dehradun, R/o 12, Doon Vihar, Dehradun.

---Plaintiffs.

Versus

Shri Jitendra Singh Negi S/0 Not Known R/0 village and Post Balawala, Dehradun.

Shri Lalit Barakoti S/0 Not Known R/0 village and Post Balawala, Dehradun.

Shri Ashwani Kumar Kamboj S/0 Not Known R/0 Uttaranchal Ayurvedic College, Rajpur, Dehradun.

Shri V.P. Agarwal S/O Not Known R/o 76/120 Saket Colony Lane No. 6, Rajpur Road, Dehradun,

Shri R.N. Singh S/o Not Known R/0 9/4 Teg Bahadur Road, Dehradun,

Shri R.N. Manglik S/o Not Know R/0 2/6, Ashirwad Enclave, Chakrata Road, Dehradun,

MKP (PG) College Society, Through its (Alleged) President Dr. Ramnath Singh,

MKP (Inter) College Society, Through its (Alleged) President Shri Virendrra Prakash Agarwal,

MIT, Through its (Alleged) President Dr. Ashwin Kr. Kamboj.

---Respondents.

RELIEFS

A. A decree for permanent injunction restraining the defendants from interfering into the management of the plaintiff No. 1''s Society.

B. A decree of mandatory injunction that plaintiff No. 2 to act as president of all the sub-committee like prior to 16.08.2009.

C. A decree for mandatory injunction restraining the defendants not to proceed with the selection process of the Lecturer in the plaintiff No. 1''s Society.

D. A decree of permanent injunction restraining the defendants not to utilize the funds of the plaintiff No. 1''s Society.

E. A declaration that the alleged selection process (if any) for the teaching purpose is illegal, void and without any authority.

F. Cost of the suit be awarded in favour of the plaintiff and against the defendants.

G. Any other relief which the learned Court deems fit and proper under the circumstances of the case be also awarded in favour of the plaintiffs and against the defendants.

Suit No. 604 of 2009

PARTIES

Dr. Y.S. Bhatnagar S/o late Shri Brhamswaroop, R/o 21, Rajpur Road, Enclave, Dehradun,

D.S. Bhatnagar S/o late Shri Brhamswaroop R/o village Kharikhurd, Post-Satdya Narayan Mandir, Tehsil Rishikesh, District Dehradun,

Km. Vibha Bhatnagar D/o Shri D.S. Bhatnagar R/o village Kharikhurd, Post-Satya Narayan Mandir, Tehsil Rishikesh, District Dehradun,

Shri Rajneesh Bhatnagar S/o Dr. Y.S. Bhatnagar R/o 21, Rajpur Road, Enclave, Dehradun. Appointed as general representative vide letter dated 8/3/2010 Herself and on behalf of petitioner Nos. 1 to 3.

Versus

Shri Jitendra Singh Negi S/o Late Shri Shankar Singh Negi, Secretary, R/o village and Post Office Balawala, Dehradun, 2. Shri Lalit Barakoti S/o Shri R.D. Barakoti, R/o village and Post Office Balawala, Dehradun,

Shri Ashwani Kumar Kamboj, Uttaranchal Ayurvedic College, Rajpur, District Dehradun,

Shri Virendra Prakash Agarwal (V.P. Agarwal), R/o 76/120, Saket Colony, Gali No. 6, Rajpur Road, Dehradun,

Dr. Ramnath Singh (R.N. Singh), R/o 9/4 Teg Bahadur Road, Dehradun,

Shri R.N. Mangalik, R/o 2/6 Ashirwad Enclave, Chakrata Road, Dehradun,

Shri Brijmohan Ajmani, B.M.Motors, 100-A, Rajpur Road, Dehradun,

Smt. Pratibha Negi, village and Post-Nathuwala, Dehradun,

Shri Ashok Raj Panwar, village and Post Balawala, Dehradun,

Dr. O.P. Kulshrestha, R/o 76/131, Saket Lane-6, Dehradun,

Smt. Preeti Nagliya, 13-B, New Survey Road, Dehradun,

Smt. Saroj Uniyal, 46- Subhash Road, Dehradun,

Smt. Sudesh Agarwal, 215- Subhash Nagar, Near Dayanand Girls School, Dehradun,

Dr. Swarnlata Mishra, 294, Chou Mandi, Roorkee, District Haridwar,

Shri Rakesh Bahuguna, 315-Sainik Basti, Tapkeshwar Road, Kolagarh, Dehradun,

Shri Surendra Singh Arya, 12/1 Bhagwandas Quarters, Dehradun.

---Respondents,

Dr. N.S. Bhatnagar S/o Late Shri Brahmswaroop, R/o 12-Doon Vihar, Jakhan, Rajpur Road, Dehradun,

18.Shri A.K.Bhatnagar S/o Late Shri H.S. Bhatnagar, R/o Post Office Road, Society Area, Claimantown, District Dehradun,

19.Mahadevi Kanya Pathsala College (A registered Society), 10-New Road, Dehradun.

---Proforma Respondents.

RELIEFS

A. A decree be issued declaring that after 16.08.2009 the Society of ''Mahadevi Kanya Pathshala College'' has become without jurisdiction, ineffective, illegal and void and it has no right to call and conduct any meeting and the Society has become defunct and management of the society be delivered to the founder family members and whatever the meetings of the governing bodies of the Society and Board of Governors of MKP College Society, MKP Inter College, MKP (PG) College and MIT have been called by respondent Nos. 1 to 10 after 16.08.2009, their proceedings are without jurisdiction, ineffective, illegal and void and the same be set-aside.

B. The respondent Nos. 1 to 10 be restrained by way of permanent injunction not to interfere in the functions of various educational institutions being run and managed by the ''Mahadevi Kanya Pathsala College'' Society or not create any interest of any one of any part of ''Mahadevi Kanya Pathshala College''.

C. Relief for the same or in alternative, whatever the Hon''ble Court deems fit, be issued in favour of the plaintiff and against the respondent Nos. 1 to 10.

D. Cost of the suit be awarded in favour of the plaintiff and against the defendant Nos. 1 to 10.

Section 10 of C.P.C. provides that no Court shall proceed with the trial of any suit in which matter in issue is also directly, and substantially in issue between the same parties, or between parties under whom they or any one of them claiming same title where such suit is pending in the same or any other Court. Section 10 of C.P.C. is quoted hereunder:

Stay of suit.- No Court shall proceed with the trial of any 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 having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

The arguments of learned Counsel for the respondents that Suit No. 108/2010 itself is barred by the provisions of Societies Registration Act, is not being looked into by this Court in this petition as this issue may be decided by the Trial Court in accordance with law. This Court is only examining whether matter in issue in Suit No. 108/2010 is directly and substantially in issue in Suit No. 604/2009 and whether parties in both the suits are same. His another argument regarding applicability of Explanation 6 of Section 11 C.P.C. does not have any force, as this Explanation 6 itself provides the applicability in respect of Section 11 only. The case law cited by the learned Counsel for the respondents is not applicable in the facts and circumstances of the case.

On careful examination of the record, this Court finds that all the parties in both the suits are not same and all reliefs claimed in both the suits are also not the same. Since, the matter relates to the same Society, controversy involved in both the suits sounds similar but proceedings of subsequent suit cannot be stayed when most of the prayers in subsequent suit are different. I am of the view, that the findings recorded by the learned Court below that the reliefs claimed in both the suits are directly and substantially same and that all the parties of both the suits are also same, is erroneous and liable to be set-aside. I also find that both the suits are pending in the Court of Civil Judge (Sr. Div.), Dehradun. The object underlying Section 10 C.P.C. is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. But such situation does not exist in the present case as both the suits are pending in same Court.

In view of aforesaid discussions the writ petition is allowed. The order dated 05.04.2010 passed by the Civil Judge (Sr. Div.), Dehradun is set-aside. The Trial Court is again directed to decide the interim injunction application paper No. 6c-2 moved by the petitioners within a period of one week from the date of production of a certified copy of the order and also decide the application paper No. 9c-2, seeking appointment of receiver, expeditiously as directed earlier by this Court vide order dated 26.03.2010. Since application No. 6-c2 and 9-c2 are pending, the reliefs (ii) and (iii) in the writ petition stand rejected.

Costs easy.

Let certified copy of this judgment be provided to the learned Counsel for the parties within 24 hrs. on payment of usual charges.