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2000 DIGILAW 158 (ALL)

MEENA BHANDARI v. . KRISHNA KUMARI

2000-01-27

D.K.SETH

body2000
D. K. SETH, J. ( 1 ) THE order dated 2. 11. 1999 passed by the learned Additional District Judge VIth Court. Saharanpur in Misc. Case No. 21 of 1995 has since been challenged in this revision petition. ( 2 ) THE impugned order was passed on an application under Section 10 read with Section 151 of code of Civil Procedure for stay of Misc. Case No. 21 of 1995 in view of pendency of O. S. No. 333 of 1s94. The said application under Section 10 is Annexure-5 to the said application in support of the revision petition. The prayer made in the said application was to the extent that further proceedings of Misc. Case No. 21 of 1995 should be stayed till the disposal of O. S. No. 333 of 1994 pending before the learned Civil Judge, Saharanpur. ( 3 ) THE present proceeding is a proceeding for probate of a will filed before the learned District judge since been transferred to learned Additional District Judge. In the said order dated 2. 11. 1999 the learned Additional District Judge had pointed out that issues involved in O. S. No. 333 of 1994 are not identical with those of Misc. Case No. 21 of 1995. The O. S. No. 333 of 1994 was for injunction between the parties, whereas the Case No. 21 of 1995 is for grant of probate of a will. Thus, the issues involved in two proceedings are altogether different apart from the fact that issue involved in the probate proceedings cannot be adjudicated upon in Suit No. 333 of 1994 by the learned Civil Judge, who had no jurisdiction to adjudicate upon such question. On these grounds, he had given the finding that the question does not come within the purview of section 10 of C. P. C. ( 4 ) LEARNED counsel tor the petitioner contended that since the parties are same and the subject-matter of the suits is same, therefore. Section 10 shall apply in full force. He further contends that even if Section 10 may not apply. Section 151 may be attracted in the interest of justice. He further contends that since the same set of documents and papers would be relied upon by the parties in their defence, in such circumstances under Section 151 further proceedings of Misc. Case No. 21 of 1995 should be stayed. Section 151 may be attracted in the interest of justice. He further contends that since the same set of documents and papers would be relied upon by the parties in their defence, in such circumstances under Section 151 further proceedings of Misc. Case No. 21 of 1995 should be stayed. ( 5 ) I have heard the learned counsel at length. ( 6 ) SECTION 10 applies in a situation where there is a previously instituted suit between the same parties or between the parties under whom they or any of them claim litigating under the same title in which the matter in issue is directly and substantially involved in issue in such previously instituted suit in a court of competent jurisdiction. ( 7 ) THUS, there are four essential conditions for attracting the application of Section 10. C. P. C. (1)that the matter in issue in the second suit is also directly and substantially in issue in the first suit ; (2) that the parlies in the second suit are the same or parties under whom they or any of them claim litigating under the same title : (3) that the Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit ; (4) that the previously instituted suit is pending (a) in the same Court in which the second suit is brought, or (b) in any Court in india, or (c) in any Court beyond the limits of India established or continued by the Central government, or (d) before the Supreme Court. ( 8 ) THE above proposition can find support from the decisions in the case of Kalipada Banerjee v. Charubala Dasee, AIR 1933 Cal 887 ; Somasundaram Chettiar v. A. Venkata Subbayya, AIR 1938 Mad 602 ; Nune Singh v. Munni Nath Singh, AIR 1954 Pat 314 ; Jugomelal Trg. Republtke v. Rungta and sons. AIR 1966 Cal 382 . ( 9 ) IN Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 , it was held that Section 10 is clear, definite and mandatory. The Court in which a subsequent suit is instituted is prohibited from proceeding with its trial in certain specified circumstances. Section 10 does become Inapplicable on the ground that the previously instituted suit was vexatious or otherwise. The Court in which a subsequent suit is instituted is prohibited from proceeding with its trial in certain specified circumstances. Section 10 does become Inapplicable on the ground that the previously instituted suit was vexatious or otherwise. ( 10 ) IN J. C. Roy Chowdhary u, M/s. Krishna Lapn Board Mills. AIR 1988 Cal 183 191, it was held that when neither the parties nor the issues are the same and when the subject-matter In controversy is not the same. Section 10 has no application. In Manohar Lal (supra), the Apex court had held that where requisite conditions for stay under Section 10 is not fully satisfied court cannot exercise its inherent power. Section 151 can be applied in a case where the Court thinks that the suit is an abuse of the process of the Court or has been filed malajide, or it is a vexatious suit. Such a view was taken In Jai Hind Iron Mart v. Tulsiram Bhagwandas, AIR 1953 bom 117 ; M/s. Anand Silk Store v. M/s. Shree Ram Silk Mfg. Co. and others, AIR 1976 Del 60 . ( 11 ) IN order to attract application of Section 10 all the four ingredients referred to above are required to be fulfilled. Now let us examine how far the above four ingredients are fulfilled in the present case, ( 12 ) IN the present Case Suit No. 333 of 1994 being a suit for injunction cannot involve the issue with regard to the question of grant of probate in respect of a will, even if the parties may be same and may claim under the same title. Since the issues involved are altogether different and the issues are not being directly and substantially in issue in the previously instituted suit Section 10 cannot be attracted. ( 13 ) THE ground that documents cannot be used simultaneously in two suits, cannot be a ground for staying of the suit even if Section 151 is attracted. There are ways and means and procedure laid down for production of certain documents from record of one Court to that of another, which may be resorted to by the parties, if they are so advised. This cannot form a ground for stay of proceedings, which is otherwise outside the purview of Section 10. There are ways and means and procedure laid down for production of certain documents from record of one Court to that of another, which may be resorted to by the parties, if they are so advised. This cannot form a ground for stay of proceedings, which is otherwise outside the purview of Section 10. C. P. C. ( 14 ) EVEN if such a question arises in the previously instituted suit for injunction, such issue cannot be adjudicated upon by the learned Civil Judge in a suit for injunction in the absence of jurisdiction conferred on him with regard to grant of probate of a will. Thus, it cannot be said that issues involved in the probate proceedings could be imagined to be involved directly and substantially in issue in a previously instituted suit in a court of competent jurisdiction. ( 15 ) FOR all these reasons, I do not find any infirmity in the order passed by the learned Additional district Judge since impugned. ( 16 ) THE petition, therefore, falls and is accordingly dismissed. No costs. .