Yogendra Prasad Singh vs Maheshwar Prasad and Another

R.A. Sharma, J.—The Plaintiff Respondent No. 1 filed a Title Suit No. 80 of 1986 in the Court of Sub-Judge, Chapra seeking declaration of title to certain properties and decree for possession. The suit was dismissed by the trial Court. Being aggrieved, the Plaintiff filed an appeal before the District Judge, which has been admitted and is pending. During the pendency of the appeal, the Defendant Respondent to the said appeal filed an application seeking stay of the proceeding of the appeal on the ground that the another suit No. 119/96 for partition of various properties including the property in question has been filed by them in another Court, which is pending. The Appellant Court has rejected the said petition holding that u/s 10 of the CPC (hereinafter referred to as the Code), it is the later suit which is liable to be stayed. Being aggrieved by the said order of the appellate Court the Defendant No. 1 has filed this revision.

Learned Counsel for both the parties have placed reliance on Section 10 of the Code in support of their respective stand. According to Section 10, the proceeding in a later suit can be stayed, provided the matter in issue therein is directly and substantially in issue in a previously instituted suit between the same parties.

In the instant case, the suit which has given rise to the appeal was filed in 1986, whereas the other suit was filed later on in 1996. Therefore, the proceeding of the appeal cannot be stayed. This position is not contested by the learned Counsel for the Petitioner. His submission however is that although u/s 10 of the Code, the proceeding in the earlier suit and appeal arising there from cannot be stayed, but in the interest of justice, this Court has power to stay the proceeding in the earlier suit also. This submission is also devoid of merit for two reasons, namely, (i) Justice has to be administered in accordance with law. Section 10 of the Code does not empower the Court to stay the proceeding in a previously instituted suit; and (ii) no such ground so as to justify the stay of the proceeding in the appeal has been made out.

This revision application has no merit and is accordingly dismissed. No costs.