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2010 DIGILAW 313 (MP)

Rajendra Kumar Jain v. Dushyant Kumar Jain

2010-03-17

S.K.GANGELE, S.S.DWIVEDI

body2010
Judgment ( 1. ) Heard. Petitioners have filed this petition under Article 227 of the Consitution of India aggrieved by the order dated 4.3.2008 passed by Third Additional District Judge, Guna in Civil Suit No. 25-A 2005, whereby learned trial Court has rejected an application filed by the petitioners under section 10 of C.P.C. for stay of the further proceedings of the aforesaid case till the pendency of final disposal of earlier instituted suit No. 32-A/04 for which first appeal No. 1 -A/06 is pending before this Court. ( 2. ) Facts of the case are that respondent No. 1 Dushyant has filed present suit for partition and declaration against the present petitioners which is pending before the Additional District Judge, Guna which is registered as Civil Suit No. 25-A/05. Earlier a suit has been filed which is Civil Suit No. 32-A/04 by the petitioners against the respondents Dushyant and Smt. Manju Jain with regard to declaration of a sale deed as null and void which is executed in favour of respondent Dushyant by one Co-owner of the property concerned, that Civil suit has been dismissed by judgment dated 6.9.2005. Against the aforesaid judgment and decree, first appeal No. 1-A/06 is pending before this Court. Subsequently, respondent Dushyant has filed present suit No. 25-A/05 for partition of the property and declaration. In this case, the petitioners have filed an application under section 10 of C.P.C. for stay of the further proceedings of the present case till the final disposal of the appeal No. 1 -A/06. Learned trial Court by impugned order rejected the aforesaid application, hence, the petitioners came up before this Court by this petition. ( 3. ) Having heard learned counsel for the parties and perused the impugned order. ( 4. ) On perusal of the judgment of earlier instituted suit No. 32-A/04 wherein sale deed executed in favour of present respondent Dushyant is under challenge and that suit has been dismissed by the trial Court. Against the aforesaid judgment of dismissal, first appeal No. 1 -A/06 is pending and in this appeal, legality and validity of the concerning sale deed which is executed in favour of Dushyant is under challenge. On the basis of same sale deed, Dushyant has filed this subsequent Civil suit for partition which is civil suit No. 25-A/05. Against the aforesaid judgment of dismissal, first appeal No. 1 -A/06 is pending and in this appeal, legality and validity of the concerning sale deed which is executed in favour of Dushyant is under challenge. On the basis of same sale deed, Dushyant has filed this subsequent Civil suit for partition which is civil suit No. 25-A/05. In this case, Dushyant is similarly claiming his right, title and interest on the suit property on the basis of alleged sale deed which is under challenge in appeal No. 1 -A/06 pending in the High Court. ( 5. ) In such circumstances, the judgment passed in the appeal is having status of res-judicata in between the parties, therefore, it appears to be the just and proper that till the final disposal of first appeal No. 1 -A/06 by this Court, further proceedings of subsequently instituted suit No. 25-A/05 should remain stayed as per the provisions of section 10 of CPC. ( 6. ) Learned counsel for the petitioners placed reliance on the decision of this Court in Dayaram v. Omkar reported in 2000 (II) MPWN 154 and Manilal v. Shri Meenu Singhania reported in 1998 (II) MPWN 198 ; wherein it is held that "if subject matter of two suits are indentical then the disposal of subseqneutly instituted suit should remain stayed tull final disposal of the earlier instituted suit." ( 7. ) Relying on the aforesaid decisions of this Court, we are of the considered opinion that learned trial Court has wrongly dismissed the application filed on behalf of the petitioners under section 10 of CPC and aforesaid order is liable to be set-aside. ( 8. ) Considering the facutal scenario of both the cases, the dismissal of the application filed under section 10 of CPC appears to be erroneous. ( 9. ) Consequently, this petition succeeds and is hereby allowed. Impugned order is set-aside and trial Court is directed to stay the further proceedings of civil suit No. 25-A/05 as per the provisions of section 10 of CPC till final disposal of appeal No. 1 -A/06 pending before this Court.