Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 1135 (PAT)

Subodh Sagar @ Subodh Sagar Sharma v. Saroj Kumar

2013-09-18

CHAKRADHARI SHARAN SINGH

body2013
ORDER 1. The petitioner is aggrieved by an order dated 16.8.2012 passed by learned Munsif-II, Munger in Eviction Suit No. 15 of 2009 whereby an application filed by the petitioner dated 04.04.2011 seeking stay of the said suit in terms of Section 10 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’), on the plea that the matter in issue in Eviction Suit No. 15 of 2009 is directly and substantially in issue in previously instituted suit i.e. T.S. No. 22/97, has been rejected. 2. To bring forth his point, learned counsel for the petitioner submits that suit property in both the cases are same. In the previous suit, plaintiff, who is respondent herein, is a defendant. He submits that by an order passed in the previous suit, the plaintiff of the subsequent Eviction Suit No. 15 of 2009, has been injuncted from alienating the suit property or altering the nature of the suit property in any manner. 3. In such circumstance, he submits that the Court ought to have applied Section 10 of ‘the Code’ and ought to have stayed proceedings in the subsequent suit. 4. Before I come to the provisions of Section 10 of ‘the Code’, the brief facts need to be stated. In the subsequent suit, which is Eviction Suit No. 15 of 2009, the Respondent is the Plaintiff and has sought for eviction of the petitioner on the ground of his personal necessity. 5. The petitioner is not a party to the previous suit being T.S. No. 22/97. Admittedly, in the previous suit, being T.S. No. 22 of 97, the plaintiff has sought recovery of possession against the Respondent. Thus, the fact that the property is in possession of the respondent who is plaintiff in the second suit, is not in dispute. Section 10 of the Code of Civil Procedure reads thus:- “10. Admittedly, in the previous suit, being T.S. No. 22 of 97, the plaintiff has sought recovery of possession against the Respondent. Thus, the fact that the property is in possession of the respondent who is plaintiff in the second suit, is not in dispute. Section 10 of the Code of Civil Procedure reads thus:- “10. Stay of suit.- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central government and having like jurisdiction, or before the Supreme Court.” 6. As has been noted above, previous suit is not between the same parties. Nature of the two suits are absolutely different inasmuch as in the previous suit, the plaintiff of that case has sought for recovery of possession whereas in the subsequent suit i.e. Eviction Suit No. 15 of 2009, the Respondent who is plaintiff in the said suit has sought for Eviction of the petitioner on the ground of his personal necessity. 7. In view of the above, Section 10 of ‘the Code’ cannot have any application in the facts and circumstances of the case and the Court below has rightly rejected the application under Section 10 of ‘the Code’. 8. Learned counsel for the petitioner, however, submits that in the facts and circumstances of the case, both the cases should be directed to be heard side-by-side. He has placed reliance upon a Supreme Court judgment reported in A.I.R. 2004 (SC) 1687 (M/s Chiti Valasa Jute Mills V. M/s Jaypee Rewa Cement) to contend that this Court is not denuded with the power to transfer the suit to the same Court, where the title suit is pending for the ends of justice. 9. I do not find any reason for passing such order in the facts and circumstance of the present case inasmuch as Eviction Suit has been filed on the ground of personal necessity which is to be adjudicated upon by following the summary procedure. 10. 9. I do not find any reason for passing such order in the facts and circumstance of the present case inasmuch as Eviction Suit has been filed on the ground of personal necessity which is to be adjudicated upon by following the summary procedure. 10. The submission made on behalf of the petitioner cannot be accepted. This application is accordingly dismissed.