Research › Search › Judgment

Madhya Pradesh High Court · body

2009 DIGILAW 513 (MP)

Dwarika Prasad v. Nirmala Devi

2009-04-18

INDRANI DATTA, SUBHASH SAMVATSAR

body2009
ORDER 1. This writ petition is filed by the plaintiff under Article 227 of the Constitution of India calling in question the order dated 16.1.2009 passed by Sixth Additional District Judge, Gwalior in Civil Suit No. 12A/08 whereby the learned Judge has allowed the application filed by respondents - defendants No.1 to 3 filed under section 10 of the Code of Civil Procedure and stayed the suit till disposal of Civil Suit No. 35A/ 06. 2. Facts of the case, briefly stated, arc that the present petitioner plaintiff filed present suit i.e., Civil Suit No. 12A/08 for declaration and injunction praying that the sale deeds dated 28.1.2006 and 6.3.2006 executed by defendants 1 to 3 in favour of defendants 4 to 5 be declared null and void; defendants 4 and 5 be restrained from alienating the property during the pendency of the suit and be restrained from interfering in possession of the plaintiff. During the pendency of this suit, an application is filed by defendants I to 3 under section 10 of the CPC stating that another suit i.e. Civil Suit No. 66A/04 is filed by one Rameshwar Dayal Khandelwal which is pending in the Court of Fourth Additional District Judge, Gwalior, hence, the present suit be stayed. 3. Copy of the plaint in civil suit No. 66A/04 is on record as Annexure P-8. From perusal of this plaint, we find that in that case, Rameshwar Dayal Khandelwal has filed the suit stating that the disputed property i.e.1255, 1256, 1259/4676 and 1259 situate in village Morar is joint family property and Dwarika Prasad has no right to alienate the said joint property. According to the plaintiff in that suit, the property was owned by Ghcesalal Khandelwal who was survived by three sons namely Shankarlal, Rameshwar Dayal and Dwarika Prasad. Out of these three sons, Shankarlal is dead and defendants No.5 to 7 in the aforesaid suit are the daughters of Shankarlal. According to the plaintiff, all the three brothers have 1I3rd share each and therefore, Dwarika Prasad who has alienated the property in favour of defendants No.5 to 7, i.e., daughters of Shankarlal has no right to alienate the same and he be restrained from alienating the property. 4. According to the plaintiff, all the three brothers have 1I3rd share each and therefore, Dwarika Prasad who has alienated the property in favour of defendants No.5 to 7, i.e., daughters of Shankarlal has no right to alienate the same and he be restrained from alienating the property. 4. Thus, in both the suits, the disputed property is the same and there is common issue involved in both the suits that whether the disputed property is joint family property or it is exclusively owned by Dwarika Prasad who is claiming to be the owner on the basis of a "Will" executed in his favour by Gheesalal. 5. In the suit filed by Rameshwar Dayal Khandelwal, he claimed a relief that Dwarika Prasad had no right to alienate the property in favour of defendants No.5 to 7. It is also claimed that defendant No.4 has no right to alienate the property further to any third party and he be directed to hand over possession of the suit property. On the application filed by the defendants, the trial Court has stayed the proceedings. Hence, this writ petition. 6. Learned counsel for the petitioner plaintiff pointed out that in the suit filed by Rameshwar Dayal Khandelwal present petitioner Dwarika 1 Prasad had filed an application under section 10 of cpe for stay of the proceedings, but the said application was rejected by the trial Court. Against the said order, Dwarika Prasad preferred Writ Petition No. 5073/ 07 which stood dismissed by this Court vide order dated 26.10.2007 and thus this Court had rejected the application under section 10 of the CPC. However, the apex Court in SLP No. 24019/07 vide order dated 15.1.2008 has stayed the order passed by this Court in the aforesaid writ petition and stayed further proceedings of the suit. Since then, proceedings in the previous suit are already stayed. If the proceedings in the present suit are also stayed, then the result will be that both the suits will be stayed as no Court can decide the matter on merits which is not the intent of section 10 of CPC. The intent of section 10 of CPC is that there should not be two conflicting judgments on the same issue. 7. The intent of section 10 of CPC is that there should not be two conflicting judgments on the same issue. 7. In the present case, the suit filed by Rameshwar Dayal Khandelwal is already stayed and if the present suit is also stayed, then the entire litigation between the parties will come to standstill. The trial Court has not examined the matter from that angle. 8. Hence, we allow this writ petition, set aside the impugned order dated 16.1.2009 (Annexure P-I) passed by the trial Court and direct the trial Court to proceed with the suit.