NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WP227 No. 224 of 2019 • Kailash Chandra Gupta S/o Late Badri Prasad Gupta Aged About 52 Years R/o Kargi, Road, Kota, Tahsil Kota, District Bilaspur Chhattisgarh.

---- Petitioner Versus

1. Shridhar Gupta S/o Late Badri Prasad Gupta Aged About 55 Years R/o Kargi Raod, Kota, Tahsil Kota, District Bilaspur Chhattisgarh(Plantiff), 2. Arun Kumar Khalkho Tahsildar, Kota, District Bilaspur Chhattisgarh., presently posted as Tahsildar, Pussour, District Raigarh (CG)

3. Mukesh Verma Revenue Inspector, Kota, Nazul, Tahsil Kota, District Bilaspur Chhattisgarh

4. State Of Chhattisgarh Through The Collector, Bilaspur Chhattisgarh.

---- Respondent For Petitioner : Mohd. Ruhul Ameen Memon with Shri Anurag Agrawal, Advocate.

For Respondent No.1 : Shri Amit Kumar, Advocate. For Respondent/State : Shri Sachidanand Yadav, PL.

Hon'ble Shri Deepak Kumar Tiwari, J

Order On Board

25 /07/2024 :

1. This petition has been filed challenging the order dated 8.1.2019 passed by the Civil Judge Class-II, Kota, Disttrict Bilaspur in Civil Suit No.24- A/2016 whereby the application preferred by the petitioner/defendant No.1 under Order 10 of the CPC has been dismissed, though for the same property, FA No.341/2018 is pending before this Court wherein both the parties were directed to maintain status quo regarding suit house in all respects, vide order dated 7.8.2018.

2. Admittedly, in the earlier civil suit No.611-A//2008, which was filed by Ajay Gupta against the father of respondent No.1/plaintiff herein namely, Badri Prasad Gupta, respondent No.1/plaintiff was also arrayed as party in the suit and a decree of partition and possession was passed in favour of said Ajay Gupta, as he is entitled for 1/4th share along with Shyama Bai Gupta, Shobha Gupta and Jyoti Gupta in the suit property involved in the said suit. The said decree was passed by 16^th Additional District Judge, Bilaspur, which was challenged by one of the sons of Badri Prasad Gupta namely, Kailash Gupta (defendant No.1 in the present suit) before this Court. During the pendency of First Appeal, one legal heir of late Badri Prasad Gupta namely, Shridhar Gupta had filed a suit for declaration and permanent injunction. In the impugned order, the trial Court has observed that in the earlier suit, alnog with portion of the suit land which was involved in the subsequent suit, inclusive of that, the other property i.e. house etc was also involved in the earlier suit. However, only on observation that no suit is pending and the application under Section 10 of the CPC was not maintainable, the trial Court has dismissed the subject application.

3. I have heard learned counsel for the parties and perused the documents annexed with the writ petition carefully.

4. It is well established that an appeal is continuation of the suit.

Considering that the issue involved in the ealier suit and in the subsequent suit, directly and substantially, is the same, this Court is of the view that the trial Court has wrongly dismissed the said application and, therefore, the impugned order is not sustainable and the same deserves to be set aside.

5. For the foregoing, the impugned order is set aside. The application filed by the petitioner/defendant No.1 under Order 10 of the CPC is allowed and it is directed that further proceeding of the subsequent civil suit shall remain stayed till adjudication of FA No.341/2018. After adjudication of First Appeal, the trial Court shall proceed with the subsequent suit, in accordance with law.

6. With the aforesaid direction/observation, the Writ Petition is disposed of.

Sd/-

(Deepak Kumar Tiwari)

Judge Barve