Dayaram vs Omkar - 1999 Supreme(MP) 1064

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : Joshi.
For the Respondent: Mehta.

Headnote:Civil Procedure Code, 1908 – S. 10 – previously instituted suit pending in appeal – subsequently instituted suit should be stayed – provision is mandatory.
        Short Note
       1. The applicant – defendants have directed this Revision against the order dated 30.3.1998 passed by Civil Judge, Class II, Dharampuri, District Dhar in Civil Suit No. 158A/84 thereby refusing to stay the proceedings of pending Civil Suit No. 158A/84 u/s 10, CPC.
       2. The undisputed facts of the case are that the predecessors of the applicant one Dayaram Patidar filed a suit against one Rameshwar, predecessors of respondent with regard to the disputed land for declaration of title in the year 1981. During the pendency of the said suit, the predecessors of the respondent Rameshwar filed the present suit Civil Suit No. 158A/84 against Dayaram in the year 1983 with regard to the same disputed property for partition and possession. On the application of the applicants subsequently instituted suit filed by Rameshwar was initially stayed during the pendency of the suit filed by Dayaram u/s 10 of the CPC. The suit filed by Dayaram was dismissed by the trial Court and the first Appeal filed by the present applicants was also dismissed.
       3. The Second Appeal arising out of the said suit and filed by the applicant is now pending in this Court. In view of the aforesaid facts, the applicants again prayed for the stay of the subsequently instituted suit on the ground that the Second Appeal which is a continuation of the previously instituted suit is pending. The trial Court rejected the application and refused to stay the proceedings of the Civil Suit No. 158A/84 on the ground that pendency of appeal cannot be considered as the suit is pending. Aggrieved the applicants have filed this Revision.
       On the consent bf the learned counsel for the parties, the matter was heard finally.
       4. Having heard the learned counsel for the parties and in view of the decision of this Court in case in Habibkhan v. Ranibai and others (1967 – JLJ – SN – 7), this Revision deserves to be allowed.
       5. In case of Habibkhan (supra), in the similar• circumstances this Court has held that the provisions of Sec. 10, CPC are mandatory and the question directly in issue in a previous suit are also agitated in a subsequent suit, previous suit even if pending in appeal, the Court should stay subsequent suit with regard to the same property between the same parties.
       6. In view of the facts of the case on hand and the law applicable, this Revision petition is allowed. The petition filed by the applicants before the trial Court u/s 10, CPC is allowed and the proceedings of pending Civil Suit No. 158A/84 in the trial Court stands stayed till the disposal of the Second Appeal No. 10/97, Pending between the parties in this Court. No order as to the costs.