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Madhya Pradesh High Court · body

2009 DIGILAW 867 (MP)

Sanjay v. Rachna

2009-07-28

A.M.SAPRE, PRAKASH SHRIVASTAVA

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Judgment ( 1. ) By filing this writ under Article 227 of Constitution of India, the non-applicant seeks to challenge the order dated 6/11/2008 passed by Family Court, Indore in C.S.No: 146/08. ( 2. ) By impugned order, the learned Family Judge has rejected the application made by non-applicant LA. 7 and 8 whereby the prayer made by non-applicant for stay of proceedings in the suit out of which this writ arises was not granted. It was refused. ( 3. ) So the short question that arises for consideration in this writ is whether learned Family Judge was justified in rejecting the application of non-applicant (petitioner herein) i.e. LA. 7 and 8. ( 4. ) Facts of the case are these. ( 5. ) The dispute is between husband and wife. The petitioner is husband whereas respondent is wife. ( 6. ) The petitioner i.e. husband has filed a suit being C.S.No. 151/06 before Family Court (first) at Jaipur against the respondent for judicial separation. It was filed on 31/3/2006. It is contested by the respondent. Issues in this case are framed. It is fixed for evidence. ( 7. ) The respondent i.e. wife has filed the petition for restitution of conjugal rights against the petitioner i.e. husband being C.S.No. 146/08 out of which this writ arises. It was filed on 28/2/2008 before Indore Family Court. In this case also, parties are contesting. Issues are framed and this case is fixed for evidence. ( 8. ) The petitioner, who is non-applicant in C.S.No. 146/08 filed by wife at Indore, therefore, filed an application under section 10 read with section 151 of Civil Procedure Code. In this application, he prayed that proceedings in C.S.No. 146/08 filed in Indore Family Court be stayed awaiting the outcome of C.S.No. 151/06 filed by petitioner before Jaipur Court. It was contended that since, admittedly the civil suit filed by petitioner (Husband) i.e. C.S.No. 151/06 before Jaipur Court for judicial separation is prior in point of time and hence, it has to be given priority in disposal on merits as against the civil suit filed by respondent i.e. wife against the petitioner (Husband) being C.S.No. 146/08 at Indore. It was contended that since, admittedly the civil suit filed by petitioner (Husband) i.e. C.S.No. 151/06 before Jaipur Court for judicial separation is prior in point of time and hence, it has to be given priority in disposal on merits as against the civil suit filed by respondent i.e. wife against the petitioner (Husband) being C.S.No. 146/08 at Indore. It was further contended that decision rendered by Jaipur Family Court in C.S.No. 151/06 apart from it being prior in point of time so far as its filing is concerned, would give the disposal of subsequently instituted civil suit filed at Indore because issues involved in both the suits are identical and common for the disposal i.e. one would govern the other. ( 9. ) As observed supra, the Family Court at Indore rejected the application and hence, this writ by husband. ( 10. ) Heard Mr. B.I. Mehta, learned counsel for the petitioner and Mr.A.S. Garg, learned senior counsel with Mr. Amit Tripathi, learned counsel for the respondents. ( 11. ) Having heard the learned counsel for the parties and on perusal of record of the case, we are inclined to allow this writ and while quashing the impugned order allow the application made by petitioner before the Family Court at Indore i.e. LA. 7 and 8 and in consuequence, stay proceedings in C.S.No. 146/08 pending before Family Court at Indore. ( 12. ) It is not in dispute that suit filed by petitioner at Jaipur against respondent i.e. C.S.No. 151/06 for judicial separation is prior in point of time as against the civil suit filed by respondent against the petitioner at Indore being C.S.No. 146/08. In other words, suit of petitioner at Jaipur is filed on 31.3.2006 whereas suit filed by respondent against petitioner at Indore is on 28.2.2008. It is also not in dispute that Issue No. 1 framed by Jaipur Court in a suit for judicial separation is identical to the issue framed by Indore Court in suit filed by wife for restitution of conjugal rights. It is also not in dispute that one suit would govern the disposal of other or at least decision in one suit would have material bearing over the disposal of other suit because firstly, both suits are between husband and wife secondly, they relate to their material relations and lastly, issues framed are common. ( 13. It is also not in dispute that one suit would govern the disposal of other or at least decision in one suit would have material bearing over the disposal of other suit because firstly, both suits are between husband and wife secondly, they relate to their material relations and lastly, issues framed are common. ( 13. ) In the light of these admitted facts emerging from the record of the 2 suits, the civil suit subsequently filed at Indore deserves to be stayed by giving preference to the one earlier filed by the parties i.e. suit at Jaipur. ( 14. ) Learned counsel for the respondent, however, vehemently argued that firstly section 10 of Civil Procedure Code does not apply in terms to matrimonial proceedings and secondly the subsequent suit filed by wife at Indore is also reached to the stage of widence. It is on these two grounds, learned counsel contended that suit filed at Indore by respondent should not be stayed, we do not agree. If section 10 of civil procedure code does not apply then its analogy would apply by taking recourse to provisions of section 151 ibid. In any event, when the earlier suit is reached to a stage of evidence then it has to be given preference as against the subsequently institutued suit, see-1987 (1) DMC 549, KulBhusan v. Kamla, Delhi High Court (By Kripal, J as his lordship then was) and (1998) 11 DMC 403, Surekha v. Dilip M.P. High Court. In the light of these decisions, the decision relied on by learned counsel for respondent reported in 2005 (2) SCC 256 has no application to the facts of this case. It is distinguishable. ( 15. ) In view of foregoing discussion, the petition succeeds and is allowed. Impugned order is set aside. As a consequence, the application made by the petitioner in C.S.No. 146/08 before Family Court, Indore is allowed. As a result the proceedings in C.S.No. 146/08 pending in the Court of Family Court, Indore are stayed till the disposal of C.S.No. 151/06 pending before Family Court (First) at Jaipur between the same parties.