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Andhra High Court · body

2008 DIGILAW 1028 (AP)

K. Vasudeva Reddy v. Kambala Sivanageswarappa

2008-12-02

P.S.NARAYANA

body2008
Judgment : The revision petitioner is the second defendant in the suit O.S.No.259 of 2006 on the file of the Principal Senior Civil Judge at Nandyal. 2. The revision petitioner filed an application I.A.No.704 of 2008 in O.S.No.259 of 2006 aforesaid under Sections 10 and 151 of the Code of Civil Procedure (hereinafter in short referred to as "Code") for the purpose of convenience, praying for the stay of further proceedings including trial of the suit on the ground that a criminal case C.C.No.318 of 2006 on the file of the Judicial First Class Magistrate at Nandyal relating to the same question is pending disposal. The learned Principal Senior Civil Judge, Nandyal, after recording reasons, dismissed the said application. Aggrieved by the same, the petitioner/second defendant had preferred the present civil revision petition under Article 227 of the Constitution of India. 3. The matter is coming up for admission. 4. Sri G.V.S. Mehar Kumar, the learned counsel representing the first respondent/plaintiff lodged a caveat and he entered appearance. 5. R2, R3 and R4/defendants 1, 3 and 4 though shown as parties, it is stated that they are not necessary parties to the present civil revision petition. 6. Sri Nalinkumar, the learned counsel representing the revision petitioner would maintain that the subject matter of O.S.No.259 of 2006 on the file of the Principal Senior Civil Judge, Nandyal and the subject matter in C.C.No.318 of 2006 on the file of the Judicial Fist Class Magistrate, Nandyal arise out of the publication published in Telugu daily newspaper "Eenadu" dated 27.04. 2006 and in the facts and circumstances of the case, if civil case is permitted to be proceeded with earlier to the disposal of the criminal case, the petitioner would be seriously prejudiced as the petitioner may have to disclose his defence which may in turn produce his trial in C.C.No.318 of 2006 aforesaid. 7. 2006 and in the facts and circumstances of the case, if civil case is permitted to be proceeded with earlier to the disposal of the criminal case, the petitioner would be seriously prejudiced as the petitioner may have to disclose his defence which may in turn produce his trial in C.C.No.318 of 2006 aforesaid. 7. The learned counsel also would maintain that in matters of this nature i.e., simultaneous proceedings i.e., civil side and criminal side when the parties are same and when the subject matter also is virtually same in both the proceedings to save the parties from embarrassment and also to save from the prejudice being caused if the defence is disclose, It would be always just and proper normally to direct the criminal case to be disposed of and till then the further proceedings in the civil suit be directed to be stayed. The learned counsel also would maintain that the mere filing of the written statement may not amount to disclosure of the defence. Since by letting in evidence during the course of trial if the further proceeding of the trial to be proceeded with the revision petitioner would be placed into serious embarrassment and in the light of the same the order under challenge in the present civil revision petition cannot be sustained and the same is liable to be set aside. 8. The learned counsel also placed strong reliance on certain decisions to substantiate his submissions. 9. Per contra, Sri Veera Reddy, the learned counsel representing Sri G.V.S. Meher Kumar, the learned counsel representing the first respondent/plaintiff would maintain that the written statement already had been filed and the defence had been disclosed and hence, the question of causing prejudice to the petitioner if the trial of the suit is further proceeded with, would not arise in the facts and circumstances of the case. The learned counsel also would maintain that even otherwise the proceedings on the criminal side would stand on a different footing when compared to the proceedings on the civil side and there is no question of causing of any embarrassment whatsoever and in the facts and circumstances of the case, especially, in the light of the reasons, which had been recorded by the learned Principal Senior Civil Judge, Nandyal, this is not a fit matter to be interfered with under Article 227 of the Constitution of India. 10. 10. Heard the learned counsel. 11. Perused the order under challenge in the present civil revision petition. 12. The present civil revision petition is filed by the revision petitioner/defendant No.2 being aggrieved of an order, dated 17.11.2008 made in I.A.No.704 of 2008 in O.S.No.259 of 2006 on the file of the Principal Senior Civil Judge, Nandyal. 13. The said application was filed under Sections 10 and 151 of the Code. It is stated that the first respondent/plaintiff filed the suit for damages for alleged defamation caused in the publication of a news report in Telugu daily newspaper dated 27.04.2006. It is also stated that the first respondent/plaintiff also filed a criminal Case i.e., C.C.No.318 of 2006 in relation to the same publication of the news item aforesaid. 14. The defendants had filed written statements and the issues had also been framed and the matter is coming up for trial. The case of the revision petitioner is that the cause of action in the suit filed claiming damages in the light of the news item and also in the criminal case aforesaid being one and the same, the trial of the suit to be further proceed with the first respondent/plaintiff would come to know the details of the defence of the defendants, who are the accused in the criminal case and thus, serious prejudice would be caused and hence, the stay of civil proceedings till the disposal of C.C.No.318 of 2006 on the file of the Judicial First Class Magistrate, Nandyal stayed for. The first respondent in the said application is the plaintiff in the suit and he resisted the same stating that already written statements had been filed and there is no more secrecy attached to their alleged defence as such no serious prejudice would be caused to the legitimate interests of the revision petitioner and also the other defendants. Further, it is stated that there is no provision of law by virtue of each stay of civil proceedings can be granted till the disposal of the criminal proceedings. The learned Judge, having formulated the point for consideration at para 6 recorded reasons at paras 7, 8 and 9 and ultimately, came to the conclusion that the application being devoid of merits, the same be dismissed and accordingly, dismissed the said application without costs. 15. The learned Judge, having formulated the point for consideration at para 6 recorded reasons at paras 7, 8 and 9 and ultimately, came to the conclusion that the application being devoid of merits, the same be dismissed and accordingly, dismissed the said application without costs. 15. The fact that the defence in the suit already had put in their written statements and the issues also had been settled. These aspects are not serious in controversy. The suit O.S.No. 259 of 2006 on the file of the Principal Senior Civil Judge, Nandyal is coming up for trial. 16. Sri Nalinkumar, the learned counsel representing the revision petitioner placed strong reliance on the decision reported in M.S. Shariff Vs. State of Madras ( AIR 1954 SC 397 ) and the Apex Court at paras 15 and 16 observed as follows:- "As between the civil and the criminal proceedings we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard and fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust. This, however, is not a hard and fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceedings may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under S.476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished." 17. The learned counsel also placed strong reliance on the decision reported in Arvind Kalidas Wadodkar Vs. Ramdas Devidas Joshi (1997 (1) CCC 249 (Bom.) Wherein the learned Judge of the Bombay High Court while referring to M.S. Sheriff's case (1 supra) and Assumpcao Ribeiro Vs. Elabviano Boa Ventura Salvador Silveira (AIR 1979 GOA, DAMAN & DIU 37) observed at para 2 as follows:- "The learned Counsel, Mr. Shelat, on behalf of the applicant has submitted that the very conclusion reached by the learned Judge is opposed to the accepted precedent and, therefore, is liable to be reversed. The learned Counsel submitted that these two matters since rest on the same set of facts, and in the civil proceedings since the applicant is to file a written statement revealing his defence and give evidence, the same would cause prejudice to the applicant who is the accused in the said criminal prosecution. The learned Counsel stressed the point that in a criminal proceeding the accused is not bound to disclose his defence whereas in the civil proceeding since he is required to file his written statement, the aforesaid protection in the criminal proceedings in effect will betaken away if the civil suit is to proceed against him. The learned Counsel made reliance on the decision in the case of M.S. Sheriff V. State of Madras (1 supra). In support of the aforesaid submission. The Supreme Court in the said decision has held that simultaneous prosecution of criminal proceedings and civil suit will embarrass the accused, and since it is necessary with due regard to the nature of criminal proceedings that a speedy trial in the criminal proceedings is necessary, the civil suit has to be stayed till the disposal of criminal proceedings. The Supreme Court in the said decision has held that simultaneous prosecution of criminal proceedings and civil suit will embarrass the accused, and since it is necessary with due regard to the nature of criminal proceedings that a speedy trial in the criminal proceedings is necessary, the civil suit has to be stayed till the disposal of criminal proceedings. In the decision in Assumpcao Ribeiro v. Elabviano Boa Ventura Salvador Silveira (3 supra), the Judicial Commissioner also took the same view relying on the decision of Supreme Court reported in AIR 1954 SC 397 . Applying the principles laid down by the Supreme Court in the aforesaid decision. It is clear that the civil suit from which this revision arises has to be stayed till the criminal prosecution under Section 500 of Indian Penal Code launched by the non-applicant is disposed off." 18. The learned counsel also placed reliance on the decision of this Court in Ch. Ramojirao And Others Vs. Khaspa Appala Narasimham And Others C.R.P.No.2103 of 2005 dated 02.02.2006, wherein the learned Judge of this Court disposed of the said C.R.P. observing as hereunder:- "The main submission made on behalf of the petitioners is that primarily the questions involved would be same in both civil suit and criminal case, which are filed for damages and for defamation respectively. Therefore, in the event civil suit is proceeded with, petitioners have to disclose their defence, which could be prejudicial to them. The Court below after taking into consideration the submissions made on either side, dismissed the application though on a different ground. However, the fact remains that the parties are same and virtually both the reliefs sought for are based on the complaint of defamation. The question as to whether the civil Court can stay a criminal case in exercise of powers under Section 10 of the Civil Procedure Code need not be gone into though sought to be raised. However, since the parties are same and both cases can be proceeded with simultaneously, in the interest of justice, it would be more apt that both cases should be tried and disposed of together instead of staying one for the purpose of another. However, since the parties are same and both cases can be proceeded with simultaneously, in the interest of justice, it would be more apt that both cases should be tried and disposed of together instead of staying one for the purpose of another. Therefore, in exercise of suo motu powers under Section 407 of C.P.C. the criminal case in C.C.No.52 of 2004 is withdrawn from the file of Additional Judicial Magistrate of First Class, Yellamanchili, and it will be taken up before the Senior Civil Judge, Yellamanchili, and it will be disposed of along with main suit in O.S.No.20 of 2003. Subject to above, Civil Revision Petition is disposed of. No order as to costs." 19. It is no doubt true that the learned Judge of this Court while disposing of the Civil Revision Petition No.2103 of 2005 while exercising suo motu powers under Section 407 of the Code of Criminal Procedure had withdrawn C.C.No.52 of 2004 from the file of the Additional Judicial Magistrate of First Class, Yellamanchili and transferred the same to the file of the Senior Civil Judge, Yelamanchili to dispose of the same along with the main suit O.S.No.24 of 2003. 20. It is not in serious dispute that the trial is yet to be commenced. But however, the defendants already had put in their written statements and the issues also had been settled and the suit is ripe for trial. C.C.No.318 of 2006 on the file of the Judicial Magistrate of First Class, Nandyal is also pending disposal. Both the civil Suit O.S.No.259 of 2006 on the file of the Principal Senior Civil Judge, Nandyal and also C.C.No.318 of 2006 on the file of the Judicial Magistrate of First Class, Nandyal are of the year 2006. It is needless to say that C.C.No.318 of 2006 could have been disposed of by this time but for reasons best known as on today it appears the same is kept pending. This Court is not inclined to express any opinion touching the other merits and demerits of the contentions advanced by both Sri Nalinkumar, the learned counsel representing the revision petitioner and Sri Veera Reddy, the learned counsel representing Sri G.V.S. Meher Kumar, the learned counsel representing the first respondent. This Court is not inclined to express any opinion touching the other merits and demerits of the contentions advanced by both Sri Nalinkumar, the learned counsel representing the revision petitioner and Sri Veera Reddy, the learned counsel representing Sri G.V.S. Meher Kumar, the learned counsel representing the first respondent. But however, in the peculiar facts and circumstances, this Court is inclined to dispose of the present civil revision petition as hereunder"- (1) Let the learned Judicial First Class Magistrate, Nandyal complete the trial and dispose of C.C.No.318 of 2006 without fail within a period of three months from the date of the receipt of a copy of this order. It is made clear that the parties are expected to cooperate for early disposal of C.C.No.318 of 2006 as directed by this Court. (2) Let the Principal Senior Civil Judge, Nandyal postpone the commencement of the trial of the suit in O.S.No.259 of 2006 for a period of three months from the date of receipt of a copy of this order.