Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 262 (ALL)

ROOPRANI JAIN v. DEEP CHAND JAIN @ DEELEP JAIN

2018-02-01

MANOJ KUMAR GUPTA

body2018
JUDGMENT Hon’ble Manoj Kumar Gupta, J.—By instant petition filed under Article 227 of the Constitution, the petitioners have challenged the order dated 24.1.2017 passed by the trial Court in Original Suit No. 83/2012 rejecting their application 42Ga. The said application was filed by the petitioners, who are defendants in the suit, with the prayer to stay the proceedings of the suit in exercise of power under Section 10 CPC, in view of the pendency of the Second Appeal No. 805/2014 between the same parties before this Court, arising out of Original Suit No. 233/1998. 2. The trial Court has recorded a categorical finding in the impugned order that the second appeal filed by the petitioners before this Court has not been admitted so far, and therefore, Section 10 would not be applicable. The petitioners being aggrieved by the order of the trial Court filed a revision, which has also been dismissed by impugned order dated 30.10.2017. 3. Counsel for the petitioners submitted that once a second appeal has been presented before this Court, the proceedings of the suit shall be deemed to be continuing, and thus, Section 10 would come into play. 4. It is not disputed that the previously instituted suit being Original Suit No. 233/1998 was dismissed on 15.9.2011 and appeal preferred against the said judgment being Appeal No. 80/2011, was also dismissed on 11.10.2013. The petitioners thereafter filed a second appeal before this Court being Second Appeal No. 805 of 2014. It is also not disputed that the second appeal filed by the petitioners has not been admitted so far. Normally, where a statute prescribes an appellate forum and an appeal is filed, then for all intent and purpose, the suit continues. However, where certain conditions are prescribed in the statute, subject to fulfilment of which the appeal could be entertained, unless those conditions are fulfilled, mere filing of appeal would not be treated to be continuation of the proceedings. A second appeal before the High Court filed under Section 100 CPC is entertainable only if it involves a substantial question of law and the High Court is satisfied about the same. It is implicit that mere filing of an appeal could not be treated as continuation of the proceedings of the suit unless the High Court satisfies itself that a substantial question of law is involved therein and admits the appeal after formulating the question. It is implicit that mere filing of an appeal could not be treated as continuation of the proceedings of the suit unless the High Court satisfies itself that a substantial question of law is involved therein and admits the appeal after formulating the question. A mere presentation of the memo of appeal before the High Court without the same being admitted, would not attract Section 10 CPC. 5. In such view of the matter, this Court does not find any illegality in the impugned orders passed by the Courts below. The petition lacks merit and is dismissed.