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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19TH DAY OF JULY, 2019

BEFORE

THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT

W.P.NO.53827 OF 2018 (GM-CPC)

BETWEEN:

MUNISWAMAIAH.N,

S/O LATE NANJUNDAIAH,

AGED ABOUT 38 YEARS,

RESIDING AT # 1, 4^TH E CROSS,

RAJINI FARM, RAJESHWARI NAGARA,

LAGGERE,

BENGALURU – 560 058.

…

PETITIONER

(BY SRI.K.SREEDHAR, ADVOCATE)

AND:

SRI.ASHOK KUMAR.C,

S/O CHANDRASHEKAR,

AGED ABOUT 35 YEARS,

RESIDING AT NO.38,

‘BHAGAVAN MANE’, 1^ST CROSS,

NEAR ST.MARY’S SCHOOL,

RAJESHWARI NAGARA,

LAGGERE,

BENGALURU – 560 058.

... RESPONDENT

(BY SRI.M.N.RAGHU, ADVOCATE FOR C/R)

THIS WRIT PETITION IS FILED UNDER ARTICLE 227

OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR

THE RECORD IN O.S.NO.1567/2018 PENDING ON THE FILE

OF XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT

BENGALURU [CCH-33] AND SET ASIDE THE ORDER

DTD:13.11.2018 ON I.A.NO.4 VIDE ANNEXURE-H AS THE

SAME

IS

UNSUSTAINABLE

IN

THE

FACTS

AND

CIRCUMSTANCES OF THE CASE AND ETC.

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THIS WRIT PETITION COMING ON FOR PRELIMINARY

HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

O R D E R

The petitioner being the defendant [who is mentioned to

be the plaintiff] in O.S.No.1567/2018 filed by the respondent

herein [who is wrongly described as defendant], is invoking

the writ jurisdiction of this court for assailing the order dated

13.11.2018 made by learned XXIII Addl. City Civil Judge,

Bangalore, whereby petitioner’s application in I.A.No.4 filed

under Section 10 of CPC has been disfavoured. After service

of notice, the respondent/plaintiff having entered caveat

through his counsel, resists the Writ Petition.

2.

Learned counsel for the petitioner argues that the

claim covered in O.S.No.1567/2018 is the subject matter in

C.C.No.27918/2016 filed under section 138 of Negotiable

Instruments Act; in this connection, a Criminal Petition

No.3523/2017

and

Criminal

Appeal

No.1331/2018

respectively on the file of this Court and the Court of Sessions

Judge, Bengaluru, have been pending; that being so, the suit

proceedings ought to have been stayed till after the disposal

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of the said criminal cases; this having not been done, there is

error apparent on the face of the record warranting

indulgence of this Court.

3.

Having heard the learned counsel for the parties

and having perused the Petition Papers, this court declines to

grant indulgence in the matter because:

(i)

Ordinarily, for invocation of Section 10 of CPC,

1908, there need to be two suits which have same/similar

subject matter; in special circumstances, Section 10 is

invocable even when both the proceedings are not suits but

they are civil proceedings; admittedly, in this case, there is a

civil suit filed by the respondent and there is also a cheque

bounce case under section 138 of N.I. Act; therefore, Section

10 of CPC going by its text does not avail to the petitioner;

and,

(ii)

in Sarkar’s Code of Civil Procedure, 12^th

Edition, page 114, it is stated that as a principle of law,

whenever a criminal case is instituted, the civil suit on the

same cause of action need not be stayed. The Madhya

Pradesh High Court in the Case of Nemi Chand Gangwal Vs.

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Harish Kumar Jhanwar, (2001) 1 CCC 54 MP has held that

the proceedings in a suit for the recover of money on the basis

of a dishonored cheque, cannot be stayed merely because a

criminal case under section 138 of N.I. Act has been

instituted; to the same effect, the Calcutta High Court too has

laid down the law in the Case of Steel Authority of India Ltd

Vs. Pilani Investment & Industries Corporation Ltd,

(2012) 4 ICC (Cal) 77.

In the above circumstances, this Writ Petition stands

dismissed.

However, this order will not come in the way of

petitioner taking up all defenses available to him in any way.

No costs.

Sd/-

JUDGE

cbc