IMPORTANT POINT
The court affirmed that distinct issues in separate suits do not warrant a stay under Section 10 CPC, and no error was found in the trial court's dismissal of the application.

JUDGMENT :

Mr. Mahendar Kumar Goyal, J. - This writ petition under Article 227 of the Constitution of India is preferred assailing the legality and validity of the order dated 05.03.2008 passed by the learned Additional District Judge (Fast Track) No.2, Ajmer (for brevity "the learned trial Court") in Civil Miscellaneous Case No.33/2007, (48/2004, 21/2004) whereby, an application filed by the petitioners/defendants (for short "the defendants") under Section 10 read with section 151 CPC has been dismissed.

2. The relevant facts in brief are that the respondent No.1/plaintiff (hereinafter referred to as "the plaintiff") filed a suit for declaration wherein, the defendants filed an application under Section 10 read with section 151 CPC seeking stay of the suit on the premise that an earlier suit No.72/2003 between the parties pertaining to selfsame property is pending consideration. The application has been dismissed by the learned trial Court vide order dated 05.03.2008.

3. Assailing the impugned order, learned counsel for the defendants submits that since, in both the suits, the parties as well as the suit property are same, the learned trial Court erred in dismissing their application filed under Section 10 read with section 151 CPC. He, therefore, prays that the writ petition be allowed, the order dated 05.03.2008 be quashed and set aside and the application filed under Section 10 read with section 151 CPC be allowed.

4. Per contra, learned counsel for the respondent No.1, opposing the prayer, supported the order passed by the learned trial Court.

5. Heard. Considered.

6. While dismissing the application filed by the defendants, the learned trial Court has observed that while, the earlier suit has been filed by the respondent No.1 for permanent injunction, the instant suit has been filed seeking a declaration that the will allegedly executed in favour of the defendants is null & void qua his rights. It has further been observed that since, the matter in issue in both the suits is different, section 10 CPC has no applicability. This Court, after examining the material on record is satisfied that the proceeding in the subsequent suit could not be stayed as the matter in issue in both the suits is quite distinct and different. Learned counsel for the defendants also failed to satisfy this Court that the order dated 05.03.2008 passed by the learned trial Court suffers from any perversity or manifest error of law/fact so as to warrant interference of this Court under Article 227 of the Constitution of India.

7. Resultantly, this civil writ petition is dismissed.