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2009 DIGILAW 806 (MP)

Regd. Vidhichand Dharamshala Trust v. Nanakram

2009-07-14

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

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ORDER Samvatsar, J. --1. This writ petition is filed by the plaintiff-petitioner being aggrieved by order dated 18/10/2007 passed by the III Civil Judge, Class-II, Gwalior in civil suit No. 137-N04 whereby the trial Court has stayed the proceedings in a suit filed under Section 10 of the Civil Procedure Code. 2. The brief facts of the case are that petitioner is a trust registered under the provisions of M.P. Public Trust Act, 1951. The petitioner filed a suit for ejectment agsinst the respondent. As per Section 3 of the M.P. Accommodation Control Act, the said trust is exempted from the operation of M.P. Accommodation Control Act and therefore, the suit for ejectment will lie only under Section 106 of the Transfer of Property Act. During pendency of this suit, an application under Section 10 of CPC was filed by the defendant stating that a reference case No. 6/05-06/B-113( 4) is pending before the District-Court on the reference of the Registrar, Public Trusts. The defendant also prayed for stay of the proceedings of the suit. By the impugned order, the trial Court stayed the suit. Hence, this petition under Article 227 of the Constitution of India. 3. Contention of Shri M.B.Mangal, learned counsel for the petitioner is that provisions of Section 10 of CPC are not attracted in the present case, as the proceedings under Section 26 of the M.P. Public Trust Act are not disputed. He further contended that under Section 10 of CPC only subsequent and direct suit can be stayed while the proceedings under Section 26 of the M.P. Public Trust Act in the present case are initiated after filing of the present suit and thus, the proceedings are subsequent to the present suit. He further contended that for passing of an order for stay of the suit under Section 10 of CPC, it is necessary that the issue involved in both the proceedings should be directly and substantively the same. 4. Shri Anand Yadav, learned counsel for the respondent supported the impugned order and contended that subject matter of both the proceedings are same, thus, the trial Court has rightly stayed the suit. 5. 4. Shri Anand Yadav, learned counsel for the respondent supported the impugned order and contended that subject matter of both the proceedings are same, thus, the trial Court has rightly stayed the suit. 5. After hearing the parties, we find that Section 10 of CPC cannot be made applicable in the present case, firstly because, the issue in the suit for ejectment is only about the validity of notice under Section 106 of the Transfer of Property Act and relation between landlord and tenant while subject matter of reference under Section 26 of M.P. Public Trust Act is about mismanagement of the trust property and whether the original object of the public trust has been failed. In that case, the Court can issue necessary direction for administration of said trust. In the present case, the subject matter is entirely different. Thus, the matter in both the proceedings is not subsequently and directly in issue. 6. Apart from that, this Court in the case of Ram Dutta v. Krishna Dutta, 1987 JLJ 198 has held that Section 10 of CPC only applies to the suit. In that case, an application for probate under Succession Act was pending and the Court had held that the application for probate under Indian Succession Act is not an issue in the present case. The reference of the Collector cannot be said to be a suit and, therefore, the provision of Section 10 will not apply. 7. In such a situation, the Court below has committed jurisdictional error in staying the suit. Hence, we allow this petition. Set aside the impugned order (Annexure P/1) dated 18/10/2007 and direct the trial Court to proceed with the suit in accordance with law. Considering the nature of proceedings, we direct the trial Court to proceed with the suit as expeditiously as possible, preferably before 31st December, 2009.