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2016 DIGILAW 1163 (ALL)

PRATIBHA TIWARI v. SATISH CHANDRA TIWARI

2016-04-01

MANOJ KUMAR GUPTA

body2016
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—The revisionist is one of the defendants in Original Suit No. 352 of 2006. The suit was instituted by the plaintiff-opposite party for mandatory injunction. The defendants in the said suit moved an application 69 Ga before the trial Court pointing out that a matter arising out of Original Suit No. 721 of 2005 is pending before this Hon’ble Court, in which validity of Will dated 27.3.1985 on the basis of which the plaintiff claims title to the suit property, is an issue under consideration. It was further pointed out that by an order dated 13.11.2006 the instant suit was clubbed with Original Suit No. 721 of 2005 and the said suit was made the leading case. Consequently, it was prayed that since the leading case is pending before this Court and, therefore, proceedings of Original Suit No. 352 of 2006 be stayed. 2. The application was opposed by the plaintiff stating that there was no stay by any Court to the proceedings of the instant suit. 3. The trial Court, by an order dated 11.5.2015, rejected the application. Aggrieved thereby, some of the defendants preferred application under Article 227 No. 3830 of 2015 before this Court. The petition was dismissed by order dated 18.8.2015 by noting that the defendants themselves admit that Original Suit No. 721 of 2005 stood dismissed and as such the application filed by them on the ground that the proceedings of the instant suit are to be stayed during the pendency of the Original Suit No. 721 of 2005, was a misconceived one. However, liberty was reserved in favour of the defendants to move a separate application raising plea of Section 10 C.P.C., in case they are so advised. 4. In pursuance of the liberty so granted, the defendants filed an application 73 Ga before the trial Court for framing an issue relating to applicability of Section 10 C.P.C. The trial Court, after taking into consideration the objections filed by the plaintiff, rejected the said application. In the order, it is noted that Original Suit No. 721 of 2005 was rejected, as the plaintiff did not pay the requisite Court fee. The trial Court further noted that no evidence has been filed by the defendants to demonstrate that the said suit or any appeal arising out of order dismissing the said suit is pending before any Court of law. The trial Court further noted that no evidence has been filed by the defendants to demonstrate that the said suit or any appeal arising out of order dismissing the said suit is pending before any Court of law. Consequently, it came to the conclusion that Section 10 C.P.C. will have no application and rejected the application. The aforesaid order was not challenged by the defendants, instead they filed another application 80 Ga for recalling the order dated 24.9.2015 and for taking fresh decision in accordance with the directions issued by this Court on 18.8.2015. The trial Court has rejected the said application by order dated 2.12.2015 holding that no case for recall of the order dated 24.9.2015 is made out and in case the defendant was aggrieved by the said order, the same should have been challenged before the higher Court. Aggrieved by the order dated 2.12.2015 dismissing the application 80 Ga, instant revision has been filed under Section 115 C.P.C. 5. Learned counsel for the revisionist submitted that the trial Court has failed to comply with the directions of this Court dated 18.8.2015 in not framing an issue relating to applicability of Section 10 C.P.C. It is urged that in such circumstances, the revisionist was justified in filing the application 80 Ga for recall of the order dated 24.9.2015. He further submitted that an appeal against the order rejecting the plaint for non payment of Court fee is pending before this Court and thus, Section 10 C.P.C. will have full applicability in the matter. 6. Under Section 10 C.P.C., no Court could proceed with trial of any suit in which the matter in issue is also directly or substantially in issue in a previously instituted suit between the same parties. Thus, for application of Section 10 C.P.C. it is necessary that there has to be a duly instituted previous suit between the same parties in which the issue is directly and substantially the same. In the instant matter, admittedly, as per the assertions made in paragraph 13 of the affidavit, the plaint of Original Suit No. 721 of 2005 was rejected on ground of non payment of Court fee. In para 14, it is stated that First Appeal No. 330 of 2008 is pending before this Court against the order rejecting the plaint for non payment of Court fee. In para 14, it is stated that First Appeal No. 330 of 2008 is pending before this Court against the order rejecting the plaint for non payment of Court fee. Even if for argument sake it is assumed that an appeal arising out of a suit being continuation of the proceedings would attract Section 10 C.P.C., still this Court finds that in the instant matter, there is no previously instituted suit at all in the eyes of law. A suit gets instituted in Civil Court on presentation of plaint accompanied by payment of requisite Court fees. In case the Court fee is not paid, then in the eyes of law the suit never came to be instituted and thus, the plea raised by the revisionist that there being a previously instituted suit now pending before this Court by way of an appeal, is wholly misconceived. 7. Further, this Court also does not find any illegality in the view taken by the revisional Court in rejecting the application 80 Ga on the ground that in case the revisionist was aggrieved by the previous order, the same should have been challenged and there was no ground which may warrant recall of the previous order. 8. The instant revision lacks merit and is dismissed.