Allowed

M/S Parwani Builders v. State of Goa Rep. by Goa Tillari Irrigation Development Corporation Thorugh Its Executive Engineer

Bombay HC3 Feb 2014WP/741/2013

Case brief

AI extract

What is this about?

The High Court held that an appeal is a continuation of the suit prima facie and thus falls within the ambit of Section 10 of the CPC. Consequently, the trial court's order rejecting a petition to continue a stay of proceedings was set aside, and the stay order was directed to continue until the appeal is disposed of.

What did the court decide?

The impugned order dated 08/10/2012 was quashed and set aside. The prior stay order dated 04/02/2005 was directed to continue until the disposal of the First Appeal No. 47/2011.

M/S Parwani Builders Vs State of Goa Rep. by Goa Tillari… — Property and Title | Bombay HC (2014)

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WP741/13

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IN THE HIGH COURT OF BOMBAY AT GOA

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WRIT PETITION NO.741 of 2013

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M/s. Parwani Builders, a partnership with office at 211/212, City Point, 17, Boat Club Road, Pune - 411 001.

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… Petitioner.

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Versus

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State of Goa, now represented by Goa Tillari Irrigation Development Corporation, through its Executive Engineer, Works Division VIII, with office behind Tivim Industrial Estate, Karaswada, Bardez, Goa.

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… Respondent.

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Mr. C. Mascarenhas, Advocate for the petitioner.

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Mr. S. Vahidulla, Government Advocate for the respondent.

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CORAM :- U. V. BAKRE, J. Date : 3 rd February, 2014

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ORAL JUDGMENT :

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Heard Mr. Mascarenhas, learned Counsel appearing

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on behalf of the petitioner and Mr. Vahidulla, learned Government Advocate, on behalf of the respondent.

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2. Rule. Rule is made returnable and heard forthwith.

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3. By this petition, the petitioner has taken exception to

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WP741/13

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an order dated 08/10/2012 passed by the Ad-hoc Additional District Judge,-I, Panaji (trial Court) in Civil Suit No. 139/2004.

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4. The State of Goa has filed the said Civil Suit No. 139/2004 against the petitioner for recovery of money arising out of a contract entered into on 04/02/1993 pertaining to work of “Construction of Sanquelim Branch Canal from Ch 5085m to 6045 m of Left Bank Main Canal of Tillari Irrigation Project”. The petitioner has filed its written statement in the said suit. Prior to the suit of the State Government, the petitioner had filed a Civil Suit No. 105/2002/A, renumbered as Civil Suit No. 169/2004, against the State of Goa in connection with the same contract. Thereafter, on 18/11/2004, the petitioner filed an application under Section 10 of the Code of Civil Procedure for stay of the Civil Suit No. 139/2004 on the ground that there was said earlier instituted suit between the parties being Special Civil Suit No.105/2002/A renumbered as Civil Suit No.169/2004. By order dated 04/02/2005, the learned Additional District Judge had allowed the said application and stayed the Civil Suit No. 139/2004 till the final disposal of Civil Suit No. 169/2004. The said Civil Suit No. 169/2004 came to be disposed of by Judgment and decree dated 30/09/2010, but the petitioners as well as respondents have instituted Appeals against the said Judgment

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viz: First Appeal No. 47/2011 and M. C. A. No. 373/2011, respectively. The learned trial Court, upon disposal of Civil Suit No. 169/2004, took up the hearing of Civil Suit No. 139/2004. The petitioner filed an application dated 12/12/2011, styled as 'Memorandum of Continuation of Stay' to point out that the said earlier suit had not been finally decided on account of filing of and pendency of appeals.

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5. By the impugned order, the learned trial Court has rejected the said application. The trial Court has held that the said Civil Suit No. 169/2004 was disposed of on 30/09/2010 and that though the appeal is continuation of the suit, the provisions of Section 10 of C.P.C. do not specifically cover the appeal proceedings and the same are applicable only to 'previously instituted suit' between the same parties wherein the issue in subsequent suit is directly and substantially in issue. The learned Judge has observed that the order dated 04/02/2005 is specific and clear to operate until the disposal of the Civil Suit No. 169/2004, which otherwise from its registration number, does not appear to be a previously instituted suit, since the present suit bears no.139/2004.

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6. The Trial Court, first of all, lost sight of the fact that though the said suit bears no.169/2004 presently, the same is a

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number given to it subsequently and the original number of the same suit was Special Civil Suit No.105/2002/A which reveals that the same was previously instituted suit, as compared to the Civil Suit No. 139/2004. Admittedly, the said Suit No. 139/2004 was stayed on account of pendency of Civil Suit No. 169/2004 and the said order dated 04/02/2005, of stay, was never challenged. However, after the Judgment and Decree was passed in the said earlier Civil Suit No. 169/2004, , the trial Court recommenced the hearing of the said Civil Suit No.139/2004.

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7. Mr. Mascarenhas, learned Counsel appearing on behalf of the petitioner has relied upon “ Durga Dass Vs. Gitan Devi ”, [(1977) 0 AIR (H.P.) 65], wherein the ratio laid down by the Privy Council in the case of “S. P. A. Annamalay Chetty V. B. A. Thornhill,” [AIR 1931 PC 263], has been relied upon. The Privi Council has held that where an appeal lies, the finality of the decree, on such appeal being taken, is qualified by the appeal and the decree is not final in the sense that it will form res judicata between the parties. The High Court has explained that the controversy raised in the suit still remains pending in appeal, so as is sometimes said, an appeal is continuation of the suit. Mr. Mascarenhas has also relied upon the Judgment in the case of

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“ Raj Spinning Mills, Amritsar Vs. A. G. King Ltd., Excelsior

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WP741/13

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Mills ” [AIR 1954 P&H, 113] wherein one of the questions was specifically whether the word 'suit' in Section 10 of C.P.C. would include the word appeal and the said question has been answered in the affirmative.

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8. In view of the above, the observation of the trial Court that Section 10 of C.P.C. does not cover the appeal proceedings and that the same is limited to “previously instituted suit” is an erroneous observation. The impugned order, therefore, is arbitrary, erroneous and unsustainable.

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9. In the result, therefore, the petition is allowed.

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(a) The impugned order dated 08/10/2012 is quashed and set aside.

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(b) The order of stay dated 04/02/2005 passed in Civil Suit No. 169/2004 to continue until the disposal of the First Appeal No. 47/2011.

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10 . Rule is made absolute in the aforesaid terms. Writ Petition stands disposed of.

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U. V. BAKRE, J.

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SMA

M/S Parwani Builders v. State of Goa Rep. by Goa Tillari Irrigation Development Corporation Thorugh Its Executive Engineer

Case brief

What is this about?

What did the court decide?

M/S Parwani Builders v. State of Goa Rep. by Goa Tillari Irrigation Development Corporation Thorugh Its Executive Engineer

Case brief

What is this about?

What did the court decide?

What the court decided

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