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2009 DIGILAW 686 (CAL)

Biswajit Sharma v. Deblina Panja

2009-09-01

MD.ABDUL GHANI

body2009
Judgment :- (1.) The instant application under Article 227 of the Constitution of India is directed against the Order No. 8 dated 11.8.2008, passed by the learned Principal Judge, Family Court, Calcutta in MAT Suit No. 166 of 2007. (2.) Upon perusal of the materials on record and also having heard the learned Counsels for the parties concerned it could be ascertained that two separate MAT Suit Nos. being 46 of 2007 and 166 of 2007 are now pending between the petitioner Biswajit Sharma (husband) and O.P. Deblina Panja (wife) before the learned Principal Judge, Family Court, Calcutta. In the first suit No. 46 of 2007, O.P. has prayed for obtaining a decree of nullity of her marriage with the present petitioner and in the second suit No. 166 of 2007 present petitioner has prayed for obtaining a decree of restitution of conjugal rights. (3.) It would appear that learned Principal Judge, Family Court, Calcutta upon hearing the learned Counsel for the parties concerned and also giving due consideration to the materials on record including the contents of the application under Section 10 of C.P.C. has been pleased to stay the subsequent suit No. 166 of 2007 till disposal of the former MAT Suit No. 46 of 2007 by passing the impugned order dated 11.8.2008. (4.) Being aggrieved by and dissatisfied with the impugned order dated 11.8.2008 the present petitioner has come up before this Court for setting aside the said order. (5.) The only point for consideration is whether the order impugned is sustainable under the law or the same needs any interference by this Court. (6.) Learned Counsel appearing for the petitioner while making submission drew this Courts attention to the materials on record including the contents of the plaint of both the suits emphatically argued and submitted that learned Court below while disposing of the petition under Section 10 of C.P.C. committed mistake and error inasmuch as issues in both the suits are not directly and substantially same. (7.) On the other hand, learned Counsel appearing for the O.P. referring to the materials on record and giving due consideration to the totality of the circumstances including the issues involved in both the suits strongly contended that it would be highly prejudicial on the part of his client if the order impugned be set aside as because the former suit being No. 46 of 2007 is a suit for nullity of marriage and if the said suit succeeds there will be no need to proceed with the subsequent suit No. 166 of 2007. In fine, the learned Counsel for the O.P. urged that in a sense issues involved in both the suits could be said to be substantially same and as such the order impugned being not devoid of any legal infirmity may be said to be sustainable in the eye and estimation of law and accordingly the application under Section 227 of the Constitution of India deserves dismissal with cost. (8.) It is the admitted position that the present O.P. -wife has brought the MAT Suit No. 46 of 2007 prior to petitioners MAT Suit No. 166 of 2007. Also it is the admitted situation that in both the suits parties are same. Although, in strict sense the issues in both the suits are not directly same, but nevertheless in our conscious judicious consideration the former suit deserves to be tried and disposed of prior to the subsequent suit for the sake of natural justice inasmuch as in the former suit O.P. -wife has challenged the legality of her marriage with the present petitioner and if the former suit succeeds and the wife obtains decree in that event there will be no need to proceed with the subsequent suit being MAT Suit No. 166 of 2007. (9.) In my considered view, present petitioner will not be prejudiced if the former suit is disposed of prior to disposal of the subsequent suit. (9.) In my considered view, present petitioner will not be prejudiced if the former suit is disposed of prior to disposal of the subsequent suit. (10.) Therefore, having heard the learned Counsels for both the parties and also regard being had to the totality of the circumstances of both the suits this Court finds reasons to understand and believe that the learned Court below while passing the impugned order did not commit any mistake or error in disposing of the application under Section 10 of the C.P.C. Accordingly, the order impugned may be said to be sustainable and tenable in the eye and estimation of law and the same needs no interference by this Court. In the result, the application under Article 227 of the Constitution of India being devoid of any merit stands dismissed. (11.) However, I make no order as to costs.