Defendant sought stay of earlier injunction and possession suits under Section 10 and 151 CPC pending her later declaration and partition suit. The court held Section 10 applies only to a later suit, not a previous one, found no abuse of process, and dismissed the writ petition.
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NC: 2024:KHC:18871 WP No. 4300 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.I.ARUN
WRIT PETITION NO.4300 OF 2024 (GM-CPC)
BETWEEN:
…PETITIONER
(BY SRI RAJASHEKAR S., ADVOCATE)
Digitally signed by V MANJUSHA BAI Location: High Court of Karnataka
AND:
SMT. SUBAKKA
W/O. LATE BATYAPPA POOJARY SINCE DEAD BY HER LR'S
NC: 2024:KHC:18871 WP No. 4300 of 2024
YOGENDRA POOJARY S/O LATE BATYAPPA POOJARY SINCE DEAD BY HIS LR'S
REP. HIS MOTHER RAJESHWARI-RESP NO.6
NC: 2024:KHC:18871 WP No. 4300 of 2024
RESPONDENT NOS.3 TO 10 ARE R/AT BALYA HOUSE BARIMARU VILLAGE, KAGEKANA POST BANTWAL TALUK-574 253.
…RESPONDENTS
(BY SRI SAMPATH A., ADVOCATE FOR R.1; NOTICE TO R.2 TO R.11 IS DISPENSED WITH VIDE COURT ORDER DATED 22.02.2024.)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI BY SETTING ASIDE THE COMMON ORDER DATED 05.01.2024 PASSED ON I.A.NO.VII IN O.S.NO.356/2014 PENDING ON THE FILE OF PRINCIPAL CIVIL JUDGE AND J.M.F.C., BANTWAL, D.K., VIDE ANNEXURE-A, ETC.
THIS PETITION COMING ON FOR ORDERS, THROUGH PHYSICAL HEARING/VIDEO CONFERENCING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
"1. For a declaration that the plaint schedule "B" properties belonging to the branch of Late Mr.Venkatraya Kamath and plaintiff being the daughter of said Venkatraya Kamath entitled to enjoy the said property as co-owner alongwith defendants No.6 to 12 and for consequential relief of permanent prohibitory injunction to restrain the defendants No.1 to 5 from dispossessing from plaint 'B' schedule properties either by creating charge or otherwise.
2. For alternative relief of Partition of Plaint 'B' and 'C' schedule properties into six equal shares if this Hon'ble court comes to the conclusion that the schedule "B" properties are the joint family properties and liable to be partitioned, and then allot one such share to the plaintiff.
3. For cost of the suit and for such other and further relief as this Court deems fit to grant under the circumstances of the case."
Section 10 of CPC 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
NC: 2024:KHC:18871 WP No. 4300 of 2024
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 have 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.
Explanation.-The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action"
Section 151 of CPC reads as under:-
"151. Saving of inherent powers of Court.-Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court."
filed the said application in the suit instituted by her and not by respondent No.1 herein.
Sd/JUDGE
VMB
List No.: 2 Sl No.: 21
1 issue framed by the court
Whether proceedings in previously instituted suits can be stayed under Section 10 CPC at the instance of the plaintiff of a later suit.
2 provisions across 1 enactments
Smt. Rukmini Bai
Sri Bhagavathi Devaru rep. by its President K. Prasanna Kamath
Smt. Subakka (since dead, by LRs)
Harishchandra
Smt. Yogini
Sharath
M.I.Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
