Rajesh vs Babulal And Others

Vijay Kumar Shukla, J

The present petition is filed under Article 227 of the Constitution of India challenging the order dated 1.12.2023 passed by II Civil Judge, Senior Division, Khategaon, district Dewas in RCS A.No. 2A/2023 whereby the petitioner's application for stay of subsequent suit filed by respondent Nos.1 to 8 has been dismissed.

Facts of the case are that present petition is filed by defendant No.3. The respondent NOs.1 to 8/plaintiffs failed a suit for declaration, partition, possession and mesne profits against the petitioner and respondent Nos.9 to 18. It was alleged by respondent Nos.1 to 8 that they have 1/3rd share in 1/2 share of Shankarlal in the lands mentioned in para 5 of the pliant i.e. 12.850 hectares and the name of plaintiff no.1 be mutated in 1/2share ie.. 4.286 hectares and on 1/2 share names of plaintiff nos.2 to 8 be mutated and possession of

566 hectares of land be given to the plaintiffs. The defendants filed the written statement and denied the contents of the plaint and contended that in previous suit for partition filed by sisters of plaintiff Babulal and Badriprasad against plaintiffs and Jagannath (predecessor of defendants) it was admitted by plaintiff Babulal and Badriprasad that whosoever look after Shankarlal will get the share of Shankarlal. Deceased Shankarlal was residing with the predecessor of the defendants Jagannath, hence defendants are Bhumiswami of the disputed land and since Shankarlal died in the year 1975 hence the present suit is barred by time. The defendants prayed for dismissal of the suit. The petitioner filed an application under section 10 CPC for setting aside the present suit as the previous suit for partition was already decided and is pending before this Court in Second Appeal. The trial court has considered the said application and upon perusal of both the suits found that disputed property in the previous suit is not the same.

Learned Senior Counsel for petitioner submits that trial court has erred while saying that subject matter of both the suits are different, infact subject matter of both the suits are same and survey numbers of the disputed property mentioned in the previous suit have been changed and modified.

Upon perusal of the application filed by the petitioner under section 10 CPC, there is no averment in the application that the disputed property in the previous suit is the same after change in the revenue record. Upon perusal of plaint of both the cases, it is evident that in previous suit disputed property was survey Nos.348, 349, 350, 475, 346, 345, 347, 473, 474, 476, 477, 229/3, 233/1 and 235/4 whereas in the present suit, disputed property is 221/1, 229/1, 235/1 and 235/2. In view of aforesaid, it is manifest that disputed property in both the plaints are not the same. As per provision of section 10 of CPC, the proceedings of subsequent suit can be stayed only when two suits are between the same parties involving the same subject matters and same questions.

In view of aforesaid, I do not find any perversity or illegality in the order impugned warranting interference under Article 227 of the Constitution of India. Even otherwise, it is settled law that jurisdiction under Article 227 of the Constitution of India cannot be exercised to correct all errors of subordinate Courts within its limitation. It can be exercised where the order is passed in grave dereliction of duty and flagrant abuse of the fundamental principle of law and justice.

Further, a Co-ordinate Bench of this Court in the case of Ashutosh Dubey and another vs. Tilak Grih Nirman Sahakari Samiti Maryadit, Bhopal and another, 2004 (2) MPHT 14 held that supervisory jurisdiction under Article 227 of the Constitution of India is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise jurisdiction which it does have or the jurisdiction through available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied - (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law; and (ii) a grave injustice or gross failure of justice has occasioned thereby.

In view of the aforesaid enunciation of law, the instant petition is devoid of merit and is hereby dismissed.