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2019 Supreme(HP) 433
IN THE HIGH COURT OF HIMACHAL PRADESH
Sandeep Sharma, J.
Bhau Ram – Appellant
Versus
Kamla Devi and Others – Respondents
Civil Miscellaneous Petition (Main) No. 212 of 2018
Decided On : 06-11-2019
G.D. Verma, Adv., B.C. Verma, Adv., G.C. Gupta, Adv., Meera Devi, Adv., Vinay Mehta, Adv.
The application under Section 10 of CPC for stay of the subsequently instituted suit is not maintainable after the trial of the suit has concluded. The word 'trial' in Section 10 of CPC refers to the final determination of the cause of action by the trial court, and not the hearing of the appeal. The purpose of Section 10 is to prevent two courts from simultaneously trying two parallel suits and to avoid inconsistent findings on the matters in issue.
Headnote:
Section 10 CPC - Stay of Appeal - Summary
Fact of the Case:
The defendant filed an application under Section 10 of the Code of Civil Procedure (CPC) to stay the appeal arising from a judgment in a subsequently instituted suit, claiming that the previously instituted suit was still pending adjudication. The trial court had dismissed the application, and the defendant approached the High Court in the instant proceedings.
Finding of the Court:
The High Court considered the arguments of both parties and found that the application under Section 10 of CPC was not maintainable as the trial of the subsequently instituted suit had concluded with the delivery of judgment and the preparation of the decree. The Court held that the word 'trial' in Section 10 of CPC refers to the final determination of the cause of action by the trial court, and the hearing of the appeal cannot be considered as a part of the 'trial of the suit'. The Court also noted that the purpose of Section 10 is to prevent two courts from simultaneously trying two parallel suits and to avoid inconsistent findings on the matters in issue.
Issues: The main issues were whether an application under Section 10 CPC can be entertained at the appellate stage and whether the proceedings in the appeal can be considered as the 'trial of the suit' as referred in Section 10 CPC.
Ratio Decidendi: The Court held that the application under Section 10 of CPC for stay of the subsequently instituted suit is not maintainable after the trial of the suit has concluded. The Court interpreted the word 'trial' in Section 10 of CPC to mean the final determination of the cause of action by the trial court, and not the hearing of the appeal. The Court emphasized that the purpose of Section 10 is to prevent two courts from simultaneously trying two parallel suits and to avoid inconsistent findings on the matters in issue.
Final Decision: The High Court upheld the order of the trial court and dismissed the application under Section 10 of CPC, stating that it was not maintainable after the trial of the suit had concluded. The Court directed the parties to appear before the trial court on a specified date.
JUDGMENT :
Sandeep Sharma, J.
Being aggrieved and dissatisfied with the order dated 22.8.2018 passed by learned District Judge (Forest) Shimla, District Shimla, H.P.,in CMP No.1-S/6 of 2017/16 in Civil Appeal No.2-S/3 of 2017/16, titled as Bhau Ram vs. Smt. Kamla Devi and others, whereby an application under Section 10 of the Code of Civil Procedure having been filed by the petitioner (hereinafter referred to as the defendant) praying therein to stay the proceedings in appeal filed by him till the time Suit bearing No.51/1 of 2013/97 is finally decided, came to be dismissed, defendant has approached this Court in the instant proceedings filed under Article 227 of the Constitution of India.
2. For having birds eye view, the facts which are relevant for the adjudication of the controversy at hand are that the land which came to be subject matter of two suits i.e. Civil Suit No.51/1 of 2013/1997 and Civil Suit No.105/1 of 2002/2003 having been filed by the respondent (hereinafter referred to as the plaintiff), originally belonged to the person namely, Smt. Reshmu Devi wife of Sh. Shankar Lal, R/o Village Hiranagar. Smt. Reshmu Devi stated to be the owner of 9-9 bighas of land situate at Mauja Badhai, Tehsil and District Shimla, H.P., as well as land measuring 11-18 bighas situate at village Shilawat, Tehsil Rohru, District Shimla, H.P., having inherited from her husband after his death, died on 25th September, 1985, whereafter original plaintiff Sh. Attar Singh instituted suit bearing No.51/1 of 2013/1997 in the Court of learned Civil Judge (Senior Division), Shimla, H.P., qua the land situate in Shimla District, claiming therein that Smt. Reshmu Devi had executed the Will dated 12.9.1985 in his favour as well as his father Sh. Hira Singh. Plaintiff claimed that his father Sh. Hira Singh also died in the year, 1993 and as such, he and his brother Sh. Janak Singh (deceased) whose legal representatives are already on record as respondent No.3 are in possession of land on the basis of aforesaid Will dated 25.09.1985. During the pendency of aforesaid suit, plaintiff instituted another suit bearing No.105/1 of 2002/2003 in the Court of learned Sub Judge, Court No.2, Rohru, District Shimla, H.P., claiming therein similar reliefs as claimed in the previously instituted suit with regard to land of late Smt. Reshmu Devi situate in Village Shilawat, Tehsil Rohru, District Shimla, H.P.
3. Suit bearing No. 51/1 of 2013/1997 instituted in the Court of learned Civil Judge (Senior Division) Shimla, District Shimla, H.P., was dismissed vide judgment dated 22.3.2014. However, learned Additional District Judge-II, Shimla vide judgment dated 2.6.2015 set-aside the aforesaid judgment and decree in the appeal having been filed by the plaintiff and remanded the case back to the learned trial Court.
4. Defendant being aggrieved and dissatisfied with the aforesaid judgment passed by learned Additional District Judge (II), Shimla, preferred an appeal before this Court and same is still pending adjudication. On the other hand, second suit bearing No.105/1 of 2002-2003 filed by the plaintiff in the Court of learned Civil Judge(Junior Division) Court No.2, Rohru, came to be decreed vide judgment dated 6.1.2016 in favour of the plaintiff.
5. Defendant being aggrieved and dissatisfied with the aforesaid judgment passed by learned Civil Judge (Junior Division) Court No.2, Rohru, District Shimla, H.P., preferred an appeal in the Court of learned District Judge (Forest ) Shimla, H.P. Before such appeal could be decided on merits, defendant filed an application under Section 10 of CPC, pleading therein that since dispute in both the suits i.e. Civil Suit No. 105/1 of 2002-2003 and Civil Suit No. 51/1 of 2013/1997 is with regard to validity of the Will dated 12.9.1985 alleged to have been executed by Smt. Reshmu Devi in favour of the original plaintiff and his late father, subsequent suit instituted in the Court at Rohru is liable to be stayed. Defendant by way of an ap
