Orient Vindyaas (M/s) vs Sazzi Kuttppan

U.C. Maheshwari, J.—He is heard on the question of admission. The petitioner has filed this petition under Article 227 of the Constitution of India, for quashment of order dated 21.09.07 (Annexure P-4) passed by 5th Additional District Judge, Bhopal, in Civil Original Suit No. 110-B/06, whereby allowing the application of the respondent defendant filed u/s 10 of the C.P.C., on account of pendency of the some criminal case, at the instance of and on the report of the present petitioner against the respondent, the further proceedings of the impugned civil suit has been stayed. The petitioner''s counsel after taking me through the averments of the ''petition as well as the paper placed on the record along with the impugned order by referring the decided case of this court in the matter of Nemichand Gangwal and Another Vs. Harish Kumar Jhanwar, , argued that the civil suit cannot be stayed till disposal of the criminal case instituted with respect of the incident out of which the cause of action of the civil suit had came into existence. In continuation he said that the aforesaid cited case of this court has been decided taking into consideration the decision of the Apex Court in the matter of State of Rajasthan Vs. Kalyan Sundaram Cement Industries Ltd. and Others, and prayed to admit and allow this petition.

Having heard, keeping in view the arguments, I have carefully gone through the papers placed on the record and the aforesaid cited cases, it is undisputed fact in the matter that the impugned suit has been filed by the present petitioner against the respondent for recovery of the sum of Rs. 7,07,573/- which has been mis-appropriated by practicing the fraud by the respondent with the petitioner and thereby the offence of breach of trust was also committed by him, in such premises before filling the civil suit FIR was also lodged by the petitioner, on which criminal offence of Sections 408, 420 and 506/ 34 of the I.P.C. was registered and after investigation the chargesheet was filed before the competent criminal court to prosecute the respondent under such offences. After filing the suit on behalf of the respondent, the impugned application u/s 10 of the C.P.C. was filed for staying the further trial of the civil suit till disposal of the aforesaid criminal case and on consideration by allowing such application further trial of the civil suit has been stayed.

In the matter of State of Rajasthan Vs. Kalyan Sundaram Cement Industries (Supra), the Apex Court has held as under:

It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal Court would deal with offence punishable under the Act. On the other hand, the Courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of power. We have never come across stay of any civil suits by the Courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. It is not a correct principle of law. Even otherwise it no longer subsists, since many of them have filed their defences in the civil suit. On principle of law, we hold that the approach adopted by the High Court is not correct. But since the defence has already been filed nothing survives in this matter.

Subsequent to the aforesaid decision on arising the occasion this court has also followed the aforesaid principle in the aforesaid cited case in the matter of Nemichand Gangwal and another Vs. Harish Kumar Jhanwar (Supra) in which it was held as under:

In view of the aforesaid enunciation of law it is well settled that a suit filed for recovery of amount covered under the dishonoured cheques should not be stayed u/s 10 of the CPC solely on the ground that Criminal proceedings u/s 138 of the Negotiable Instruments Act has been instituted.

In the light of the aforesaid on examining the case at hand, I have found that the impugned order has been passed contrary to the aforesaid settled principle and pursuant to the same is not sustainable under the law. Consequently by allowing this petition, the impugned order Annexure P-4, is hereby set aside and case is remitted back to the trial court with a direction to proceed with the civil suit in accordance with the procedure prescribed under the law. There shall be no order as to costs. Before parting with the matter, the respondent defendant is extended a liberty to approach this court with appropriate application or proceedings, if he is aggrieved by this order or any part of it.

C.C. as per rules.