ORDER

Heard finally, with the consent of the learned counsel for the parties.

This miscellaneous petition has been filed by the petitioner under Article 227 of the Constitution of India against order dated 04.04.2022 (Annexure P/4), passed in Civil Suit No.18-A/2020 by the learned Civil Judge, Junior Division, Kasrawad, District West Nimar Mandleshwar (MP) whereby in a suit (Annexure P/1) filed by the respondent / wife (plaintiff) for divorce, an application for stay of suit under Section 10 of the Code of Civil Procedure, 1908 filed by the petitioner / husband (defendant) has been rejected.

2. In brief, the facts of the case are that prior to the aforesaid suit for divorce, another suit was filed by the petitioner / husband for restitution of conjugal rights in the Court of Principal Judge, Family Court, Dewas, which was decreed on 13.02.2020 in RCS A No.01/2019; against which, First Appeal No.398/2020 has also been preferred by the respondent / wife, which is still pending; and while the aforesaid appeal is still pending, the respondent / wife has also filed a suit for divorce under Section 2 of the Dissolution of Muslim Marriages Act, 1939, which is still pending as Civil Suit No.18-A/2020; and in the aforesaid suit, an application under Section 10 of the Code of Civil Procedure, 1908 has been filed for stay of the suit on the ground, that as First Appeal No.398/2020 is already pending before the High Court and till its final decision is made, no suit for divorce can be allowed to continue. Hence, it was prayed that the divorce suit be stayed.

3. A reply to the aforesaid application has also been filed by the respondent / wife and it submitted that the present suit has been filed on a different cause of action as the earlier suit, which has been decided was for restitution of conjugal rights, whereas the present suit is for divorce; and thus, it is submitted that the application deserves to be dismissed.

4. Learned Judge of the trial Court, after appreciating the submissions, has rejected the application on the ground that in both the suits, although the parties are the same, however, the reliefs are different and the issues are also different. Hence, there is no need to stay the present suit.

5. Shri P.M. Jain, learned counsel appearing for the petitioner has submitted that the impugned order is liable to be set aside for the reasons that if the first appeal is finally dismissed by this Court, there would be a decree in favour of the petitioner / husband for restitution of conjugal rights and if in the mean time, there is a decree of divorce passed by the Civil Court in favour of the respondent / wife, it would run contrary to the order and decree passed by the High Court.

6. Heard learned counsel for the parties and perused the record.

7. From the record, it is apparent that both the parties are husband and wife and are having matrimonial differences, which has given rise to the different proceedings, as admittedly, the petitioner / husband had earlier filed an application for restitution of conjugal rights, which was registered as RCS A No.01/2019 in the Court of Principal Judge, Family Court, Dewas, Camp / Circuit / Transit Sitting at Mandleshwar and was decreed on 13.02.2020, and which has already been challenged by the respondent / wife Anjeem Bee in First Appeal No.398/2020, and the present civil suit has been filed by the respondent / wife for divorce on the ground of cruelty under the Muslim Law.

8. In the considered opinion of this Court, First Appeal No.398/2020 pending before this Court against the decree of restitution of conjugal rights would take sufficiently long time to decide; and so far as the civil suit for divorce filed by the respondent / wife is concerned, apparently, its cause of action is the cruelty and different issues shall be framed to decide the lis between the parties. In such circum