RAJENDRA MENON, J.

( 1 ) CHALLENGE in this petition under Article 227 of the Constitution is made to an interlocutory order dated 27. 6. 2005 passed by learned Distt. Judge, morena in Civil Suit No. 3a of 2005.

( 2 ) LEARNED Distt. Judge, has allowed an application for stay of the suit in question pending before him under Section 10 of CPC, thereafter, has proceeded to consider and decide certain applications interlocutory in nature filed under Order 39, Rule 1 and 2 of CPC by the respondents, petitioner feels aggrieved by the aforesaid action of learned Distt. Judge, morena.

( 3 ) IT is the case of the petitioner that the respondent No. 1 has filed the suit in question being Civil Suit No. 3a of 2005 which is pending in the court of Distt. Judge, Morena. It is alleged by the plaintiff in the aforesaid suit that the petitioner/defendant in the suit so also the plaintiff are engaged in manufacturing and sale of mustard oil and both are using a common trade mark i. e. ("double Sher" ). It is the case of the defendant/respondents that they are using the aforesaid trade mark since 1996, an application for registration of aforesaid trade mark is under consideration before the competent authority and they have acquired proprietary right and interest over the said trade mark. Inter alia contending that the respondents be restrained from using the aforesaid trade mark in the area of the plaintiff suit in question has been filed.

( 4 ) PETITIONER contends that on the same facts and circumstances, they have also initiated proceedings in the court of Distt. Judge, darjeeling under Section 142 of the Trade mark Act and have sought various reliefs in the said suit filed by them in Darjeeling. An objection was raised and taking recourse of the provision of Section 10 of CPC, petitioner prayed for stay of trial of the present suit filed by the respondents pending before Distt. Judge, Morena. The application under Section 10 was taken up for hearing by the learned distt. Judge, Morena and by the impugned order, he has recorded a finding that the issues involved in both these cases i. e. case pending before him so also under section 142 before Distt. Judge, Darjeeling, involve similar questions and are substantially of the same nature and finding so, has stayed proceedings of the trial of the present suit pending before him. However, after having ordered, learned distt. Judge has proceeded to take up for consideration certain interlocutory applications pending in the suit.

( 5 ) IT is the case of the petitioner that once learned Distt. Judge has come to the conclusion that conditions stipulated under Section 10 of CPC for stay of the suit is attracted and has passed the order staying proceeding of the trial, learned Distt. Judge, it was argued by the petitioner's counsel has committed grave error in proceeding for consideration of interlocutory application including application under order 39, Rule 1 and 2 of CPC. Inter alia contending that once proceedings in a trial of the suit is stayed exercising jurisdiction under section 10 of CPC, learned Court below cannot proceed to decide any other interlocutory application, petitioner is before this court seeking a direction to the learned Distt. Judge, not to proceed with hearing of any application in the pending suit trial of which, stands stayed by the impugned order. In support of his contention, Shri Ankur Mody, learned counsel representing petitioner, invited my attention to the following judgments : (i) Pukhraj D. Jain v. G. Gopal lakrishna. (ii) Manilal v. Shri Meenu singhania. (iii) Sujanbai v. Motiram. On the basis of aforesaid judgments, it is argued that even for deciding an application under Order 39, Rule 1 and 2 of CPC, certain issues which are involved in the previous suit filed by the petitioner before Distt. Judge, darjeeling will have to be decided, the same be not permissible under law, it is submitted that learned Distt. Judge, be restrained from proceeding to decide the applica

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