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2008 DIGILAW 901 (ORI)

NARASINGHA RAM v. STATE BANK OF INDIA

2008-09-30

SANJU PANDA

body2008
JUDGMENT : Sanju Panda, J. - In this writ petition, Petitioner assails the order dated 29.7.2004 passed by the learned Civil Judge (Senior Division), Khurda in Intent Case No. 1 of 2003 allowing the application filed by opposite party No. 5 to stay further proceeding of In test Case No. 1 of 2003 till final disposal of Civil Suit No. 41/16 of 2003. 2. The brief facts leading to filing of this writ petition are as follows: The present Petitioner filed Civil Suit N 0.41/16 of 1999/2003 in the court of learned Civil Judge (Senior Division), Khurda against opposite party No. 5-Nehru Seva Sangha represented through its Secretary for a declaration of his right, title and interest in respect of Schedules-A and C properties of the plaint, removal of the Defendants from Schedule-A property, recovery of manse profit the rate of Rs. 100 per day from 15.11.2003 till recovery of possession of Schedule-A property, a decree of permanent injunction along with costs etc. on the ground that late Harihar Ram was his brother who died on 27.10.2002. He being the only legal heir is entitled to the entire property left by him as per the schedule given in the plaint. In the said suit, present opposite party No. 5 who is Defendant No. 1 filed written statement challenging the locus stand of the present Petitioner to file a suit for the above relief as said Harihar Ram after renouncing the world had donated all his properties to 'Nehru Seva Sangha', a charitable institution where orphan physically handicapped and blind children are staying. During the lifetime of Harihar Ram, he received many donations for the charitable institution and out of that he was managing the said institution. Therefore, the Plaintiff being the legal heir of said Harihar Ram was entitled to the relief claimed in the suit. In the said suit, the Plaintiff filed Infest Case No. 1 of 2003 for grant of succession certificate in his favor. Therefore, the Plaintiff being the legal heir of said Harihar Ram was entitled to the relief claimed in the suit. In the said suit, the Plaintiff filed Infest Case No. 1 of 2003 for grant of succession certificate in his favor. In the said proceeding, Defendant No. 1-opposite party No. 5 also filed an application u/s 10 of the CPC to stay the proceeding for issuance of succession certificate in favor of the Petitioner on the ground that the civil suit is pending where the Petitioner has prayed for a declaration of his right and title over the property of late Harihar Ram and during the lifetime of Harihar Ram he was the life-long devoted Principal Secretary of the said Nehru Seva Sangha who is dedicated all his properties and assets of the management of the institution to carryon the philanthropic activities. The suit is now pending in the court of learned Ad hoc Addl. District Judge, Khurda. Therefore till the final adjudication of Civil Suit No. 41/16 of 1999/2003 the said proceeding should be stayed to avoid conflicting decision and to avoid prejudice to be caused the parties. The Petitioner filed his objection to the said application stating therein that the subject matter of the civil suits is completely different from the present proceeding and properties involved in the present proceeding is only bank deposits and the present proceeding is not a suit as it is a proceeding u/s 373 of the Indian Succession Act which is to be decided in a summary manner. Therefore, the provisions contained in Sections 10 and 151 of the CPC are not attracted. If the stay was granted, the disposal of the proceeding would be delayed. Therefore, he prayed for dismissal of the application. The learned Civil Judge (Senior Division), Khurda allowed the said application relying on the decision of this Court in the case Smt. Saudamini Das and Others Vs. State of Orissa, wherein it was held that a miscellaneous proceeding started for the purpose of grant of succession certificate is not a suit; there is No. doubt that it is a civil proceeding to which relevant provisions of the CPC are attracted. State of Orissa, wherein it was held that a miscellaneous proceeding started for the purpose of grant of succession certificate is not a suit; there is No. doubt that it is a civil proceeding to which relevant provisions of the CPC are attracted. As per the sum and substance of the said decision, though miscellaneous proceeding is not a suit, the provision of the CPC will apply to it and as such there is No. bar to grant stay further proceedings of the case in view of the provision of Section 10 of the CPC which specifies three requirements, the matter in issue is directly and substantially the same in both the suits, the court is competent to grant relief claimed therein and also the relief claimed in the subsequent suit. As the other suit was transferred from the said court and the properties involved and the title claimed over the properties are same, the learned Civil Judge stayed the further proceeding of Infest Case No. 1 of 2003 till disposal of Civil Suit No. 41/16 of 2003. 3. The Learned Counsel appearing for the Petitioner submitted that the trial court wrongly relied on the decision of this Court, as cited above, as the proceeding under the Indian Succession Act is a miscellaneous proceeding and not a suit. Though some of the issues are same in both the proceedings, the subject matter of the suit is different. Therefore, he prayed for setting aside the impugned order as the three ingredients as contained in Section 10 of the CPC were not fulfilled to grant stay of further proceeding of a suit. 4. The Learned Counsel appearing for contesting opposite party No. 5 submitted that since the dispute in both the proceedings is regarding the property of late Harihar Ram who donated all his properties to present opposite party No. 5 Nehru Seva Sangha, a charitable institution, and the decision of the earlier proceeding depends on the decision of the subsequent proceeding and the present proceeding being the subsequent proceeding, it has to be stayed till disposal of the earlier proceeding and even though the ingredients of Section 10 of the CPC ode were not fully satisfied, for the interest of justice and fair-play the Court exercising its inherent jurisdiction u/s 151 of the CPC can grant stay of further proceedings. 5. this Court heard the rival submissions of the parties. 5. this Court heard the rival submissions of the parties. The fact that in both the proceedings more or less the issues are same, parties are same and some of the properties are also same. Since the present proceeding is a subsequent proceeding and the decision of the earlier proceeding will depend on the decision of the subsequent proceeding, though the provision of Section 10 of the. CPC is not attracted, the Court, for the interest of justice, can stay the further proceedings of the subsequent proceeding in exercise of its inherent jurisdiction. If the case will be considered from another angle that the claim of the present Petitioner that he is the sole legal heir of late Harihar Ram, whereas opposite party No. 5 claims that it is a charitable institution being founded by late Harihar Ram and for the benefit of the physically handicapped and blind children the said institution is functioning after receiving aid and help from different persons. Even where the reliefs are based on different cause of action, if the subject matter in the two suits is the same, for the interest of justice further proceeding of the latter suit should be stayed. The basic object is to avoid multiplicity of proceedings between the same parties. Therefore, the cause of action of both the proceedings is different from each other and if both the matters will be adjudicated simultaneously there is possibility of conflicting decision. As the Petitioner has filed the suit for declaration that he is the only legal heir of late Harihar Ram, the other suit depends on the result of the first suit. Therefore, to do substantial justice to the parties the trial court rightly passed the impugned order. 6. As there is No. error apparent on the face of the record and the order is not perverse or without any materials available on record, this Court is not inclined to interfere with the impugned order in exercise of the jurisdiction under Article 227 of the Constitution of India. Accordingly, the writ petition dismissed. No. costs. Final Result : Dismissed