K. Balu and others vs Madasamy and others

Plaintiffs in O.S.No.298 of 1996 on the file of District Munsif Court, Srivilliputhur have come to this court complaining about the illegality of

procedure adopted by the Lower Court.

Petitioners have filed the suit for declaration that they are hereditary Poojaries and for consequential reliefs. Respondents had filed a suit against

some third parties for the relief relating to settlement of accounts, etc.; and the same is pending before this Court in S.A.1548 of 1995. In view of

the pendency of second appeal before this Court, an application was filed by respondents to have the entire suit stayed u/s 10 of Code of Civil

Procedure. The Court also passed an order u/s 10 of CPC staying all the proceedings.

Thereafter, the same petitioners moved an application for injunction in the suit seeking for some urgent reliefs. I am not going into the question as

to the relief sought for in that injunction application since the court refused to entertain the same in view of the stay of suit u/s 10 of Code of Civil

Procedure. The Court refused even to receive the application and returned the same. That procedure is challenged in this revision petition under

Article 227 of Constitution of India.

Since Lower court did not receive the application, I do not think that I should issue notice to the respondents in this proceedings.

Section 10 of CPC read thus:

SECTION 10: 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 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.

Commenting on Section 10, Mulla of C.P.C., 15th Edition 1995, learned author has said thus:

A stay order under this Section does not take away the power of the Court in the stayed suit to make interlocutory orders, such as orders for a

receiver or an injunction, or an attachment before judgment. An order of stay under this Section does not take away the jurisdiction of the court to

refer the suit to arbitration with the consent of parties.

In a recent decision of Supreme Court reported in Amita Kaushish and Others Vs. Sanjay Kaushish and Others, their Lordships held thus,

The impugned order is only a direction to list the appeal FAO (OS) 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 the 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 relief as

may be available and warranted in the facts and circumstances.

In a very recent decision of Allahabad High Court reported in Rameshwar v. Vth Additional District Judge, Basti, 1999 A.L.J. 22, it is 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 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 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 stay of such suit.

The decision of the Madhya Pradesh High Court is relied upon 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 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 case of Amit Kaushish v. Sanjay Kaushish, 1995 (8) SC 507. In the said decision, it as 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 matters 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 on the merits of the suit

or the proceeding itself affecting the decision as observed earlier. ...

In Smt. Kulsumum Nisan Vs. Mohammad Farooq and Others, , the question that came for consideration was whether an amendment

application under Order 6 Rule 17 of CPC could be considered when the suit has been stayed. In paragraph 3 of the Judgment, learned Judge

held thus:

In this Court, it was strenuously urged that Section 10 was a complete bar to the making of an interlocutory order in the suit which had been

stayed under that Section. Strong reliance was placed on the words ""no court shall proceed with the trial of any suit in which the matter in issue is

also directly and substantially at issue in a previous instituted suit between the same parties"" and it was maintained that the trial of the suit

commenced with the filing of the plaint and any order passed by the Court after the staying of the suit was without jurisdiction. In my opinion the

argument is without substance and cannot be accepted for a moment. The object underlying the provisions of Section 10 C.P.C. is to prevent

simultaneous trial of two suits in which the matter in issue between the parties is directly and substantially the same. An interlocutory order in the

nature of issue of injunction, or appointment of a receiver, or an order of attachment before judgment cannot be regarded as a matter affecting, the

trial of the suit. It seems to me that the question as to whether a party should or should not be impleaded does not encroach on the merits of the

controversy between the parties. It is a matter of a formal nature and cannot in any way determine their respective rights. I am, therefore, of the

opinion that an amendment of the plaint by adding a defendant to the suit is not a matter relating to the trial of the suit. Such an order cannot,

therefore, be taken to be a step in the trial of the suit.

In V.R. Balakrishnan Nadar Vs. R. Velayudhan Nadar and Others, , interim application was filed for appointment of receiver and for

amendment of plaint. Trial Court allowed it, which was challenged in revision. Learned Judge had taken into consideration Smt. Kulsumum Nisan

Vs. Mohammad Farooq and Others, and decisions of other High Courts and held thus:

Section 10 C.P.C. states that 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 etc. The question here is whether it could be said that in passing on order on an

interlocutory application, the court would be proceeding with the trial of the suit.

In Senaji Kapurchand v. Pannaji Devichand, AIR 1922 Bom. 276. a Division Bench of the Bombay High Court said:

But under S. 10 it is provided that 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. That does not prevent the Court from making interlocutory orders, such as orders for

a Receiver, or an injunction, or, as in this case, an order for attachment before judgment.

The Allahabad High Court in Smt. Kulsumum Nisan Vs. Mohammad Farooq and Others, , also takes the same view. The learned Judge said in

that case:

The object underlying the provisions of S. 10 C.P.C. is to prevent simultaneous trial of two suits in which the matter in issue between the parties is

directly and substantially the same. An interlocutory order in the nature of issue of injunction, or appointment of a receiver, or an order of

attachment before judgment cannot be regarded as a matter affecting the trial of the suit. It seems to me that the question as to whether a party

should or should not be impleaded does not encroach on the merits of the controversy between the parties. It is a matter of a formal nature and

cannot in any way determine their respective rights.

In that case some reliance had been placed in a decision of the Supreme Court in Harish Chandra Bajpai Vs. Triloki Singh, , wherein it was

observed that ''trial'' was used as meaning the entire proceedings before the tribunal from the time when the petition was transferred to it under

Sec. 86 of the Representation of the People Act until the pronouncement of the award. In the Supreme Court case the question turned on the

interpretation of S. 83 as to whether the tribunal seized with the election petition was empowered to order amendment of the petition under S.

90(2) of the Act. Before the Supreme Court it was contended that S. 90(2) extends the provisions of the Civil P.C. to proceedings before

tribunals only in respect of procedure and that power to order amendment under Order VI, R. 17 is not within the extension.

The Supreme Court overruled the objection, holding that the provisions of Chap.III read as a whole clearly showed that ''trial'' was used as

meaning the entire proceedings before the tribunal from time when the petition was transferred to it u/s 86 until the pronouncement of the award.

So far as the word ''trial'' used in S. 88(3) of the Representation of the People Act is concerned, it was construed by the Supreme Court in the

context of the various provisions contained in chapter III of the said Act and the analogy could not be extended to a suit which has been stayed

under S. 10, Civil P.C.

The same view has been taken in regard to passing interlocutory orders by the Mysore High Court in Baburao Vithalrao Sulunke v. Kadarappa

Prasappa Dabbannavar, AIR 1974 Mys. 63......

I find no error in the view taken by the court below. This C.R.P. is dismissed. I make no order as to costs, in the circumstances of the case.

In V.P. Vrinda v. K. Indira Devi, 1994 (1) K.L.J. 614, learned Judge considered the question what is the scope of trial and whether

consideration of interlocutory application will be barred when the suit is stayed. Learned Judge took into consideration the meaning of ''trial'' in

Black''s Law Dictionary, V Edition at page 1348, which 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. 2d 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.

It is further said that the examination of facts or law for the purpose of determining the issue is trial. In paragraph 12 of the Judgment, learned Judge

found 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. Insofar 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 issue in the suit. An enquiry as regards the said aspect cannot be treated as trial of the suit u/s 10 CPC cannot bar the court

from entertaining such an interlocutory application.

In this case, lower court has even refused to receive the application to its file. Before returning the same, a duty is cast on lower court, to see

whether stay is a bar for entertaining the application. When that is nothing to do with trial, nor it decide cause of action from determining the rights

of parties, there is no prohibition in entertaining the same. Lower court has committed grave injustice in returning the application to petitioners.

Even though I have found that Lower Court committed patent illegality, I do not think that anything survives in injunction application as on date.

Interim application was relating to a festival to be held on 2.12.1998. Even if I direct lower court to entertain the application, no relief could be

granted by it as on date, for the relief claimed. The application has to be amended for which opportunity has to be given to the petitioner.

Under the above circumstances, I direct lower court to entertain the application and pass orders after permitting petitioner to amend the

application. At the same time, I direct the lower court not to commit such illegality without looking into the papers and relevant provisions of law.

Office is directed to return the original papers to petitioners who shall submit the same before lower court along with the copy of this order.

Amendment will be carried out after the original petition is produced by the petitioner before the lower court.

In the result, the Civil Revision Petition is disposed of as above. No costs. Consequently, C.M.P.No. 851 of 1999 is closed.