Point of Law: Stay of suit – Same issue raised before Trial Court and High Court – Subsequently instituted suit liable to be stayed and since the instant suit filed prior to the suit pending before the High Court, it could not be stayed.

JUDGMENT :

CM (M) 381/2021 & CM APPLN.17125/2021 (by the petitioners u/S 151 CPC for stay)

1. This petition has been filed under Article 227 of the Constitution of India by the defendants before the learned Trial Court praying that the order dated 16th February, 2021 passed by the learned Trial Court be set aside.

2. The facts as are relevant for the disposal of the present petition are that the suit bearing No. CS 8173/2016 (Old No.236/2010) was filed by the respondent/Ashok Kumar on 9th July, 2010 seeking declaration and permanent injunction against the present petitioners and late Sh. Ram Dev (father of the petitioner No.1 and the respondent). The respondent/Ashok Kumar subsequently filed another suit on 10th September, 2012 before the High Court bearing No. CS(OS) 2755/2012 seeking partition, possession, cancellation, declaration and permanent injunction. Issues have been framed in both the suits and evidence is being recorded.

3. In the suit bearing No. CS 8173/2016, at the stage of defendants’ evidence, the petitioners moved an application under Section 10 read with Section 151 of the Code of Civil Procedure, 1908 (for short, “CPC”) seeking stay of the suit on the plea that the issues in this suit and the suit bearing No. CS(OS) 2755/2012 before the High Court were the same. Vide impugned order dated 16th February, 2021, the learned Trial Court dismissed the application holding that only a subsequently instituted suit was liable to be stayed and since the instant suit had been filed prior to the suit pending before the High Court, it could not be stayed. A cost of Rs.10,000/- was also imposed on the petitioners for filing what it termed was a frivolous application.

4. Sh. Vivek Sharma, learned counsel for the petitioners submitted that there was no error in the view taken by the learned Trial Court insofar as Section 10 CPC was concerned that it was only a subsequent suit that could be stayed. However, his grievance was that the learned Trial Court, in the facts of the case, ought to have exercised its powers under Section 151 CPC and to have allowed the application and stayed the trial. It was the contention of the learned counsel for the petitioners that since the subsequent suit was pending before the High Court and the High Court was a ‘Court of Record’, the findings of the High Court would be binding on the Court of the Senior Civil Judge. The learned counsel has placed reliance on the judgments of the Supreme Court, reported as Baradakanta Mishra Ex-Commissioner of Endowments v. Shri Bhimsen Dixit (1973) 1 SCC 446, Union of India and Others v. Kamlakshi Finance Corporation Ltd. 1992 Supp (1) SCC 443 and Suganthi Suresh Kumar v. Jagdeeshan (2002) 2 SCC 420, to fortify this submission.

5. On the other hand, Sh. Charu Tandon, learned counsel for the respondent appearing on advance notice has submitted that the learned Single Judge of this Court while dealing with suit No. CS(OS) 2755/2012 had vide orders dated 2nd February, 2018 recorded that the plaintiff i.e. the present respondent, had given up the relief of declaration with respect to property No.11/144, Geeta Colony, Delhi and that in any case, the issues as framed by the learned Single Judge on that date and the issues framed in the instant suit were not the same. Further, the learned counsel pointed out that vide order dated 11th May, 2018, the learned Single Judge had held that if a co-owner first filed a suit for declaration of his rights as co-owner, the same could not bar him from subsequently seeking partition. He, therefore, submitted that the application for stay of the instant suit was rightly rejected by the learned Trial Court. Learned counsel further submitted, relying on Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal AIR 1962 SC 527(1), that the powers under Section 151 CPC could not be exercised when specific provisions existed to deal with the matter.

6. Before proceeding further, Section 10 CPC may be reproduced as below:

“10. Stay of suit.-No C