Order allowing commissioner to visit property to submit report is valid even though a stay is in operation.

1. Defendant in O.S.No. 12 of 1995, on the file of District Magistrate-cum-Judicial Magistrate, Vilathikulam, is the revision petitioner.

2. The suit was originally filed on the file of District Munsif’ s Court, Kovilpatti as O.S. No.10 of 1991 and subsequently, on the formation of new courts, it was transferred to Vilathikulam Munsif’ s Court and renumbered as O.S.No. 12 of 1995. Plaintiffs filed the suit for declaration that they are the absolute owners of the property and to restrain the defendant from interfering with their possession.

3. It is admitted that there was an earlier suit filed by defendant as O.S. No.258 of 1985, on the file of District Munsifs Court, Kovilpatti, and a decree was passed in favour of petitioner herein. The matter was taken in second appeal before this Court in Second Appeal No.1693 of 1995, and the same is pending. In view of pendency of the second appeal, all proceedings have been stayed under Section 10, C.P.C. The reason for filing this revision is, an interim order was obtained by respondents herein from changing the nature of the property. Alleging violation of the interim order, they wanted to initiate contempt proceedings against the defendant. They also filed I.A. 268 of 1998 to re-issue a commission to ascertain whether any change of circumstance was there, after the injunction order was obtained. The same was seriously opposed by petitioner, and the main ground of objection was that since the suit has been stayed under Section 10, C.P.C., all proceedings are to be stayed, and the lower Court has no jurisdiction even to take into consideration the interlocutory applications. The lower Court did not accept this contention, and the Commissioner was permitted to inspect the property and file his report. The same is challenged in this revision.

4. After receipt of notice, respondents also entered appearance, and I heard learned counsel on both sides.

5. The only point urged by learned counsel for petitioner is that when proceedings have been stayed under Section 10 of Code of Civil Procedure, the lower Court should not have passed the impugned order directing the Commissioner to visit the property. I do not think that the submission of learned counsel could be accepted.

6. In Amita Kaushish v. Sanjay Kaushish, JT 1995 (8) S.C.507, the Honour-able Supreme Court has held thus:-

"The impugned Order is only a direction to list the appeal FAO (O.S.) No.221 of 1991 filed by the appellants for disposal pending in the High Court. The Division Bench, by its order dated July, 12 1994, directed to list the appeal for final hearing on October, 17 1994 within first five cases. It would appear that there is long drawn litigation inter se parties. Since the time fixed by the High Court is already over and appeal is yet to be disposed of, we request the High Court to appropriately fix an early date for disposal, preferably before the end of this year.

The learned counsel for the respondents stated that on account of the stay of the suit, his clients are prevented to take any direction or order by way of interlocutory application. The stay of the trial of the suit does not preclude the respondents to seek such appropriate interlocutory reliefs as may be available and warranted in the facts and circumstances." (Italics supplied)

7. In Indian Bank v. Maharashtra State Co-op. Marketing Federation Ltd., A.I.R.1998 S.C. 1952 : 1998 (2) L.W. 632, the Honourable High Court considered the scope of Section 10, C.P.C. and in para 8, it .has been held thus:-

"Therefore, the word "trial" in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit." The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel