Radhey Shyam vs The Additional Civil Judge and Others

Bela M. Trivedi, J.—The present petition has been filed by the Petitioner (original Defendant) challenging the order dated 31st March, 2009 passed by the Additional Civil Judge (Jr. Division) and Judicial Magistrate No. 1, Alwar (here-in-after referred to as the "trial court") in Civil Suit No. 34/8/2000.

The short facts giving rise to the present petition are that the Respondent No. 2 (original Plaintiff) had filed the suit being civil suit No. 34/8/2000 seeking injunction against the present Petitioner and also against the Respondent No. 3 (original Defendants). During the pendency of the said suit, the Respondent No. 2 also filed another suit seeking partition of the properties including the property, which was subject matter of the earlier suit. The said suit for partition came to be decreed vide judgment and decree dated 16.1.2006. The present Petitioner subsequently filed the application in the earlier suit of injunction seeking stay of the proceedings u/s 10 readwith Section 151 of Code of Civil Procedure. The trial court dismissed the said application vide order dated 31st March, 2009. Being aggrieved by the same, the present Petitioner has invoked the jurisdiction of this Court under Article 227 of the Constitution of India.

It has been submitted by the learned Counsel Mr. Manu Bhargava appearing for the Petitioner that the trial court had committed an error by not staying the proceedings of the previous suit when the subject matter of the said suit was same as that of the subsequent suit between the same parties. Relying upon the judgment of Gauhati High Court in case of Subho Ram Kalita (Deceased by L.R.s) and Others Vs. Dharmeswar Das Koch and Others, the learned counsel submitted that where the requirement of Section 10 of CPC are not satisfied, recourse to Section 151 CPC is permissible. He has also placed reliance on the judgment of Delhi High Court in case of Vijay Kumar and Ors. v. Manohar Lal and Ors. ( AIR 1979 Del 1) to submit that the Court can exercise inherent jurisdiction to stay subsequently instituted suit. However, the learned counsel for the Respondent No. 2 supporting the order passed by the trial court, submitted that the subsequent suit having already been decreed by the court, the application u/s 10 in the previous suit was not maintainable.

Having regard to the submissions made by the learned Counsel for the parties and the impugned order passed by the trial court, it appears that it is not disputed that the present Petitioner had made an application u/s 10 readwith Section 151 of CPC in the suit, which was previously instituted suit and not the subsequent suit. From a bare reading of Section 10 of Code of Civil Procedure, it clearly transpires that Court could not proceed with the trial of any suit when the matter in issue is also directly and substantially same in a previously instituted suit between the same parties or between the parties under whom they or any of them, as the case may be, litigating under the same title. In the instant case, the subsequent suit of partition has already been decided by the Court. It is also disputed as to whether the matter in issue in the previously instituted suit of injunction was same as that of the subsequent suit of partition or not. That apart since Section 10 of CPC would be applicable only to the subsequently instituted suit, as rightly held by the trial court, the application u/s 10 in previously instituted suit, after the disposal of the subsequent suit by the court was not maintainable. It is needless to say that when there is a specific provision in the Code of Civil Procedure, the inherent powers u/s 151 could not be invoked. There being no illegality and infirmity in the order passed by the trial court, this Court exercising limited jurisdiction under Article 227 of the Constitution of India is not inclined to interfere with the said order.

In that view of the matter, the petition being devoid of merits, deserves to be dismissed and is, accordingly, dismissed.

Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and that also stands dismissed.