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2013 DIGILAW 229 (JK)

Nabir Bhat v. Gulla Dar

2013-04-19

JANAK RAJ KOTWAL

body2013
1. There is deemed service of the respondents. Despite service, respondents are not present. They are, accordingly, set ex parte. Matter is taken up for final consideration. 2. Heard and perused the record. 3. By the order dated 03.12.2012 passed in the civil suit in file No. 199, titled, Nabir Bhat v. Gulla Dar and others, learned trial Judge asked both the sides to apprise the court about the orders passed by this Court in OWP No. 514/1998 to ascertain whether the suit before the trial Court can proceed during pendency of the said writ petition as also the effect of its the pendency on the suit. 4. On 31.12.2012, learned trial Court passed order thereby consigning the suit to records till disposal of the writ petition purportedly under Section 11 of Code of Civil Procedure (for short the Code) only on the ground that information as sought vide order 03.12.2012 was not provided. The plaintiff has impugned the order dated 31.12.2012 in this revision petition. It is contended that learned trial Judge has passed the impugned order with total non application of mind and has thereby deprived the petitioner of his right to seek trial of the case. 5. To say the least, learned trial Judge has left much to be desired and has acted not only impatiently but contrary to law as well. While making a casual reference to section 11 of the Code, there is not even a whisper in the order as to how section 11 was applicable. The order depicts total unawareness on the part of ld. Presiding Officer as to what happens if section 11 of the Code applies in a particular case. To say precisely, section 11 of the Code bars trial of the suit or an issue if it is hit by the principle of res judicata as envisaged therein. The principle of res judicata applies only if conditions provided under section 11 are fulfilled. Idea of staying the proceeding in a suit under section 11 is unknown. 6. An order dismissing a suit under section 11 of the Code or staying proceedings in a suit under section 10 of the Code cannot be casually passed with a stroke of pen as certain conditions are to be fulfilled in both the cases. Approach of ld. Idea of staying the proceeding in a suit under section 11 is unknown. 6. An order dismissing a suit under section 11 of the Code or staying proceedings in a suit under section 10 of the Code cannot be casually passed with a stroke of pen as certain conditions are to be fulfilled in both the cases. Approach of ld. trial Judge in this case, however, had been too casual and shows improper use of jurisdiction by him. 7. Viewed thus, impugned order is set aside and learned trial Judge is asked to proceed ahead in the suit in accordance with law. It would, however, be open to the learned Judge to take into consideration the effect of pendency of the writ petition on the suit if sufficient material in this regard is produced. 8. Record be remitted back. 9. Disposed of accordingly, along with connected CMP(s).