Mohammad Maqbool Bhat @APPELLANT@Hash Sonaullah Malla & ors

Learned Sub Judge, Sopore, has, in terms of order dated 10.07.2017 (hereinafter shortly referred as the impugned order), stayed the trial of the suit

titled “Mohammad Maqbool Bhat Vs. SonaullahMalla& othersâ€​.

It appears from the perusal of the impugned order that an application had been presented by the counsel for the respondents herein (defendants

therein) submitting therein that same nature of case on similar facts and matter in issue being subjudice before the said Court, the application of

Section 10 of the Code of Civil Procedure is attracted.

In the objections which have been filed by the petitioner herein, it has been stated that the application being misconceived merits rejection and the

suit instituted subsequently has been stated to have been filed on a different cause of action.

The learned Sub Judge has given reference of the subject matter of the suits and observed that the conditions for stay of the suit in terms of Section

10 of the Civil Procedure Code are attracted.

The petitioner has assailed the impugned order on the grounds which can be, precisely, put forth here as under:

(I) The impugned order has been passed without judicial application of mind as the provisions of Section 10 CPC applies to the suits wherein the

issues are directly and substantially in issue in a previously instituted suit between the same parties;

(II) The application filed by the respondents was not seeking stay of the suit of the petitioner but was filed for clubbing of the suit;

(III) The ld. Sub Judge, in terms of the order impugned has held and declared the dispute in the suit filed by the petitioner and the respondents to be

identical and while doing so applied the provisions of Section 10 of the Code of Civil Procedure when it is an admitted position in the impugned orderÂ

that the suit filed by the petitioner pertains to the property falling under Survey No.3474 while as the suit filed by the respondents pertains to the land

falling under Survey No.3476 which is contradictory to the conclusion drawn by the trial court.

It would be relevant here to give reference of the reliefs claimed in the first and the subsequent suits by the parties. In the first suit it is being

prayed that a decree of perpetual injunction be granted in favour of the plaintiffs restraining the other-side from causing interference in the suit land. In

the subsequent suit, similar relief has been prayed for vis-Ã -vis subject matter of the suit.

Mr. Ratanpuri, learned counsel for the respondents submitted that the instant petition is not maintainable as the application presented by the

respondents, if rejected by the learned trial court, would not have finally disposed of the suit or the other proceedings as it would have only resulted in

continuation of both the suits. While supporting his submission, learned counsel placed reliance on the judgment rendered by a Co-ordinate Bench of

this Court in the case titled “Haji Ama Bhat Vs. Khaliq Ahmad &Orsâ€​ reported in 2013(II) S.L.J 614.

Learned counsel for the petitioner, on the other hand, stated that since the trial court has failed to appreciate the subject matter involved in the suit

on the touchstone of Section 10 of the Code of Civil Procedure, the stay of the suit was not the proper course for the trial court.

Revisional powers, for avoiding protraction in the trial court of suit and other proceedings, have been curtailed in view of the amendment to the

proviso to Section 115 CPC. In the same background, learned counsel for the respondents questioned the maintainability of the revision petition by

stating that by the order impugned, the suit or other proceedings have not been concluded or terminated finally.

In my opinion, the plea raised by the learned counsel for the respondents carries force. The application presented on behalf of the respondents for

stay of subsequent suit, if decided otherwise than as done in the impugned order, would not have concluded the proceedings finally.

Furthermore, the petition filed on behalf of the petitioner is hit by the mischief of Proviso added to the Section 115 CPC vide amendment made

under Civil Laws(Amendment) Act, 2009 dated 20.03.2009. It would be pertinent here to refer to said Proviso here-under:

“Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or

other proceedings, except where the order, if it had been made in favour of the party applying for revision would have finally disposed of the suit or

other proceedings.â€​

It is evident here that had the order been passed in favour of the revisionist herein, that would not have disposed of the suit or other proceedings.

In view of the same, power under under Section 115 of the Code of Civil Procedure cannot be invoked. Resultantly, petition is found to be without any

merit, as such, dismissed.

Copy of the order be sent to the learned trial court for information.