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2013 DIGILAW 508 (UTT)

Diwan Giri v. Civil Judge (J. D. ), Haldwani

2013-08-01

B.S.VERMA

body2013
Judgment B.S. Verma, J. By means of this writ petition, the petitioners have prayed for to issue a writ or direction for setting aside the order dated 29.08.2005 passed by Civil Judge (J.D.), Haldwani, District Nainital in Civil Suit No. 40 of 1992 whereby the order dated 04.12.1995 passed by the Civil Judge (J.D) in the above suit was recalled. Brief facts giving rise, according to the petitioners, are that the petitioners were the defendant in Suit No. 27/53 of 1991-92, Chanar Giri Vs Mohan Giri & others a partition suit under Section 176 of the U.P.Z.A.& L.R. Act. During the pendency of the above suit, respondent No. 2 filed a Civil Suit No. 40 of 1992 before the court of Civil Judge (J.D.), Haldwani. An application (64C) has been filed by the petitioners in the above civil suit to stay the proceeding before it till the disposal of the suit pending before the revenue court. The learned Civil Judge (J.D.), after hearing the parties allowed the said application (64C) and stayed the proceedings of Civil Suite pending before him vide order dated 04.12.1995. As the order of stay of suit, under Section 10 of C.P.C., has been passed by the learned Civil Judge (J.D.) in suit No. 40 of 1992 pending before him, the learned Civil Judge considering the judgment of Hon’ble Apex Court in National Institute of Mental Health & Neuro Sciences Vs C. Parameshwara reported in AIR 2005 Supreme Court 242 vide order dated 29.08.2005 suo moto recalled his earlier order dated 04.12.1995 whereby the proceeding was stayed. Against the said order, the petitioners have filed the present writ petition. Heard learned counsel for the parties and perused the record. From the perusal of the record it transpires that the learned Civil Judge (J.D.) recalled his order considering the judgment of Hon’ble Apex Court in National Institute of Mental Health & Neuro Sciences Vs C. Parameshwara reported in AIR 2005 Supreme Court 242 wherein it has been held that the court can exercise its power under Section 10 of C.P.C., if both the suits are pending in the same court having jurisdiction to hear the suit. Therefore, the learned Civil Judge (J.D.) recalled its order. Before going further, it is pertinent to quote Section 10 of C.P.C., which reads as under:- “10. Therefore, the learned Civil Judge (J.D.) recalled its order. Before going further, it is pertinent to quote Section 10 of C.P.C., which reads as under:- “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.” I have perused Section 10 of C.P.C., which provides that the suit can be stayed where any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom 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 relief. The revenue court, as per Section 331 of U.P.Z.A.&L.R. Act, is having jurisdiction to try the suit for partition of land and the civil court is having jurisdiction to entertain the suit to grant injunction. Both the suits have been filed on the different cause of action and having independent jurisdiction. Since, the civil court is not having jurisdiction to decide the suit of partition of agricultural land, therefore, civil suit cannot be stayed under Section 10 of C.P.C. on the ground that another suit of the same land is pending before the revenue court. The order has rightly been recalled by the learned Civil Judge. In view of the judgment of the Hon’ble Apex Court in National Institute of Mental Health & Neuro (supra) wherein it has been held that it is referable to a suit instituted in a civil court and it cannot apply to proceedings of other nature instituted under any other statute. In view of the facts that the suit of a partition of land has been filed under Section 176 of U.P.Z.A.&L.R. Act in different statute, therefore, the application of the petitioners has rightly been rejected by recalling the order dated 04.12.1995 by the civil court. In view of the facts that the suit of a partition of land has been filed under Section 176 of U.P.Z.A.&L.R. Act in different statute, therefore, the application of the petitioners has rightly been rejected by recalling the order dated 04.12.1995 by the civil court. The writ petition is devoid of any merit and is liable to be dismissed. Accordingly, the writ petition is dismissed.