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2007 DIGILAW 1559 (PAT)

Raj Kumar Chauhan v. Brajesh Kumar Singh

2007-09-21

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Respondent No.1-petitioner, aggrieved by the order dated 13.3.2006 passed by the Subordinate Judge 1st, Supaul in Miscellaneous Case No. 2 of 2005 refusing to stay the said case till the disposal of Title Suit No. 19 of 2002 pending in the Court of Subordinate Judge 4th, Supaul, has preferred this application. 2. Short facts giving rise to the present application are that Brajesh Kumar Singh, opposite party no. 1 herein, filed application under Sec. 22 of the Hindu Succession Act, inter alia, praying for a direction to Raj Kumar Chauhan, the petitioner herein, for executing sale deed in respect of the property mentioned in the application on receipt of the consideration money. Said Brajesh Kumar Singh earlier to that had filed Title Suit No. 19 of 2002, impleading the petitioner herein as defendant no. 18 inter alia praying for partition of his half share in Schedule I and 1/4th share in Schedule II property. Relief added by way of amendment is to direct defendant no. 18 of the suit to execute the sale deed after receipt of the consideration money in respect of Schedule IV property, which is the subject matter of the Miscellaneous case. 3. Petitioner filed application for stay of the Miscellaneous case under Section 10 of the Code of Civil Procedure, hereinafter referred to as the Code. By reason of the impugned order, said prayer has been rejected holding that Miscellaneous application under Sec. 22 of the Hindu Succession Act does not come within the expression "suit" as mentioned in Section 10 of the Code and as such it cannot be stayed under that provision. 4. In view of aforesaid, following questions fall for determination: (i) Whether an application filed under Sec. 22 of the Hindu Succession Act is a suit within the meaning of Sec. 10 of the Code of Civil Procedure? (ii) Whether a proceeding other than suit, namely, a proceeding under Sec. 22 of the Hindu Succession Act can be stayed by a court in exercise of the power under Sec. 10 of the Code of Civil Procedure? 5. Mr. Dwivedi, appearing on behalf of the petitioner submits that an application filed under Sec. 22 of the Hindu Succession Act is for adjudication of right and hence comes within the expression "suit" within the meaning of Sec. 10 of the Code. 6. Mr. 5. Mr. Dwivedi, appearing on behalf of the petitioner submits that an application filed under Sec. 22 of the Hindu Succession Act is for adjudication of right and hence comes within the expression "suit" within the meaning of Sec. 10 of the Code. 6. Mr. Amrit Abhijat, appearing on behalf of opposite party no. 1, however, submits that an application filed under Section 22 of the Hindu Succession Act, hereinafter referred to as the Act, is not a suit within the meaning of Sec. 10 of the Code. 7. Rival submissions necessitate examination of the scheme of the Code as also Civil Court Rules framed by the High Court. 8. Sec. 10 of the Code reads as follows: "Sec. 10. Stay of suit"No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court." 9. From its plain reading, it is evident that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit. The word suit has been used in this Section as also at several places in the Code, but the same has not been defined. Order IV of the Code deals with the institution of the suit and Rule I thereof, provides for its institution by presentation of plaint. Order IV Rule (2) of the Code requires the plaint to comply the provisions of Order VI and VII of the Code as far as applicable. 10. Sec. 22 of the Hindu Succession Act, which is relevant for the purpose, reads as follows: "Section 22. Order IV Rule (2) of the Code requires the plaint to comply the provisions of Order VI and VII of the Code as far as applicable. 10. Sec. 22 of the Hindu Succession Act, which is relevant for the purpose, reads as follows: "Section 22. Preferential right to acquire property in certain cases.-(1) Where, after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolve upon two or more heirs specified in Class I of the Schedule, and anyone of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such persons shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in Class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration (or the transfer shall be preferred." Explanation.In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf." 11. Aforesaid provision is silent as to the procedure to be followed for filing an application under this provision. Ordinarily, in my opinion, a proceeding in which the person initiating it, does not question the interest of other side, such proceeding may not come within the meaning of the expression, suit. Viewed from this angle, an application filed under Section 22 of the Act, is an independent application in which the person invoking the provision, does not question the interest of the other side in the property but claims preferential right to acquire the property. 12. Viewed from this angle, an application filed under Section 22 of the Act, is an independent application in which the person invoking the provision, does not question the interest of the other side in the property but claims preferential right to acquire the property. 12. Part-VI Chapter l(ll)(B) of the Civil Court Rules framed by the High Court provides for classification of cases, which has two heads. (i) Suits and Appeals from decrees; (ii) Miscellaneous Judicial Cases. 13. Rule 454 of the Civil Courts Rules, hereinafter referred to as the Rules deals with suits and appeals from decrees, same reads as follows: Rule 454.(a) For the purpose of the periodical statements, suits and appeals from decree are divided into three classes I. Suits for Money and Movables and Appeals in the same; II. Suits and Appeals under the Rent law; and III. Title and other Suits and Appeals in the same. (b) The details of this classification, which must be strictly adhered to throughout the returns, will be found in Annual Statement No. 2. (c) As all plaints are to be registered on presentation in the General Register of suits, orders rejecting plaints must be treated for the purposes of the rules in this Chapter as suits, and shown in Annual statements. Head-II is in respect of Miscellaneous Judicial Cases. It has two subheads, namely, (a) Cases under the Code of Civil Procedure. (b) Cases under other Acts. 14. It is dealt in Rule 459 of the Rules. Rule 459 (b)(Xlix) of the Rules reads as follows: "Application under Sec. 22 of the Hindu Succession Act, 1956 (Act 30 of 1956)." 15. Thus, an application filed under Section 22 of the Act comes within the category of Miscellaneous Judicial Case and hence, does not come within the expression "suit". 16. The view, which I have taken, finds support from the judgment of this Court in the case of Gopal Prasad vs. Baushidhar Singh and Ors., 2000(1) PLJR 233 in which, it has been held as follows: "12. 16. The view, which I have taken, finds support from the judgment of this Court in the case of Gopal Prasad vs. Baushidhar Singh and Ors., 2000(1) PLJR 233 in which, it has been held as follows: "12. Having regard to the relevant provisions of the Code of Civil Procedure and the Civil Court Rules, as discussed hereinabove, I am of the definite opinion that a person seeks to enforce his preferential right as envisaged under Sec. 22 of the said Act may make an application in a court having jurisdiction and such application shall be registered and as Miscellaneous Judicial Case. The court below, is therefore, not correct in law in holding that the person has to file a regular civil suit by presenting a plaint in the manner prescribed under the Code of Civil Procedure. 14. As noticed above, Patna High Court has framed specific rules in this respect whereby application under 22 of the said Act has to be registered as Miscellaneous (Judicial) Case and not a suit. According to Rule 459 of the Civil Court Rules framed by the Patna High Court, to enforce preferential right under Sec. 22 of the said Act, an application has to be filed which shall be registered as Miscellaneous (Judicial) Case." 17. Therefore, the first question posed at the outset is answered in negative and it is held that an application under Section 22 of the Hindu Succession Act shall not come within the expression suit. 18. Now, I proceed to consider the next question. Mr. Dwivedi attentatively contends that word suit deserves to be given a liberal meaning. He submits that technically, an application filed under Section 22 of the Act may not come within the expression suit, but the underlying object behind Sec. 10 of the Code is to avoid conflicting decision, hence application filed under Sec. 22 of the Act deserves to be stayed in exercise of the powers under Sec. 10 of the Code. 19. Mr. Abhijat, however, points out that sine qua non for application of Section 10 of the Code is that both the proceedings must come within the expression suit and in the present case, an application filed under Sec. 22 of the Act, not being a suit, provisions of Sec. 10 of the Code is wholly inapplicable. 20. I find substance in the submission of Mr. Abhijat. 20. I find substance in the submission of Mr. Abhijat. Sec. 10 of the Code puts rider on a Court to proceed with the trial of a suit in which the matter in issue is directly and substantially in issue in a previously instituted suit. Having come to the conclusion that a proceeding under Sec. 22 of the Act, does not come within the meaning of the expression suit, there is no escape from the conclusion that same cannot be stayed by a court in exercise of the powers under Sec. 10 of the Code. 21. The view which I have taken finds support from the judgment, of the Gujarat High Court in the case of Gujarat State Road Transport Corporation, Bhavnagar vs. Vimlaben L. Shah, AIR 1995 Gujarat 220, the relevant portion whereof, reads as follows: "7. Language of Sec. 10 itself suggests that it is referable to a suit instituted in Civil Court and it cannot apply to proceedings of other nature instituted under the statute, more particularly, when by ,ouster clause enacted in special statute, the jurisdiction of the Civil Court is specifically ousted. Sec. 10 of the C.P.C. can never have any application so as to stay the proceedings under the special statute before the special forum on the ground that one of the parties has already approached the Civil Court despite ouster clause ousting the jurisdiction of the Civil Court. To accept the contention of the respondent-plaintiff in substance would amount to conferring jurisdiction upon the Civil Court despite its specific ouster by the special statute and it could also render meaningless and nugatory the ouster clause contained in the special statute, the object of which was to specifically oust the jurisdiction of the Civil Court and to confer the same on the competent authority." (underlining mine) 22 Accordingly, the answer to the second question posed at the outset, is rendered in negative and it is held that a proceeding under Sec. 22 of the Hindu Succession Act, cannot be stayed by court in exercise of power under Section 10 of the Code. 23. In the result, I do not find any merit in this application and it is dismissed accordingly, but without any order as to cost.