Rukmani Bai vs Asharam

Sujoy Paul, J.—This petition filed under Article 227 of the Constitution challenges the order of court below dated 30.10.2012, whereby the application of the petitioner preferred u/s 10 CPC is rejected by court below. This Court while entertaining the petition passed interim order dated 7.1.2013, whereby further proceedings of Civil Suit No. 17A/2012 were stayed.

The petitioner filed Civil Suit No. 41A/2011 (Annexure P/2). During the pendency of suit, the petitioner filed application u/s 10 CPC for staying the proceedings of his suit. The prayer is made because another Civil Suit No. 26A/2010 (Annexure P/5) is pending between the same parties.

Shri Amit Lahoti, learned counsel for the petitioner, criticized the order passed by the court below, whereby the said application is rejected. He submits that the reasons assigned by the court below are irrelevant and extraneous in nature. By taking this Court to the reply of Section 10 application (Annexure P/7), it is submitted that the order of court below needs interference.

Shri Dheeraj Budholiya, learned counsel for the respondents No. 1 and 2, relied on his stand taken in the reply (Annexure P/7) dated 27.9.2012.

I have heard learned counsel for the parties and perused the record.

It is not disputed by learned counsel that the parties in the second suit, Annexure P-2, are already there in the first suit. The court below has rejected the application on the ground that in both the suits although survey number is same, but the total land involved is different. The court below further opined that in both the cases, the evidence needs to be recorded separately.

The question is, whether the said reason is in accordance with law ?

In the opinion of this Court, the court below has taken a hyper technical view. The rival parties in both the matters are almost same. In both the suits, the parties are contesting regarding a land, which is arising out of same survey number. The description/amount of land may be different. This Court in Dadolwa and Another Vs. Ramakant and Others, opined that for applicability of Section 10, it is not necessary that there should be complete identity of parties in both matters. If the matter in previously instituted suit is directly and substantially in issue in another matter, the subsequent suit needs to be stayed. In the present case, it is clear that the land in question is arising out of same survey number. Interestingly, in the reply to section 10 application (Annexure P/7), the respondents No. 1 and 2 have stated that they have no objection if subsequent suit is stayed.

In this view of the matter, the court below has taken a hyper technical approach and has not examined the ingredients and purpose of section 10 of CPC. This also runs contrary to the order passed by this Court in Dadolwa (supra).

Considering the aforesaid, the impugned order dated 30.10.2012 (Annexure P-1) is set aside. The application u/s 10 CPC is allowed. Petition is allowed. No costs.