Dismissed

Subodh Sagar @ Subodh Sagar Sharma v. Saroj Kumar

Patna HC18 Sept 2013CWJC/19418/2012

Case brief

AI extract

What is this about?

The Patna High Court dismissed the petitioner's application seeking a stay of eviction proceedings under Section 10 CPC. The Court held that the section did not apply as the parties in the previous suit were different from the present suit, which was based on personal necessity. Consequently, the suits need not be heard side-by-side.

What did the court decide?

The application under Section 10 of the Code of Civil Procedure seeking stay of the eviction suit was dismissed.

Subodh Sagar @ Subodh Sagar Sharma Vs Saroj Kumar — Property and Title | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.19418 of 2012

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====================================================== Subodh Sagar @ Subodh Sagar Sharma S/O Shyam Mistry Proprietor of Sagar Studio, R/O Mohalla- Bekapur, Police Station- Kotwali, P.O. Munger, District- Munger. .... Defendant .... Petitioner Versus Saroj Kumar S/O Late Deo Narayan Yadav R/O Village- Herudiyara, Police Station- Kasim Bazar, District- Munger. .... .... Respondent ====================================================== Appearance : For the Petitioner : Mr. Harshwardhan Sahay For the Respondent : Mr. Ajay Mukhiya,

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====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

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ORAL ORDER

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2 18-09-2013 1. The petitioner is aggrieved by an order dated 16.8.2012 passed by learned Munsif-II, Munger in Eviction Suit No. 15 of 2009 whereby an application filed by the petitioner dated 04.04.2011 seeking stay of the said suit in terms of Section 10 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) on the plea that the matter in issue in Eviction Suit No. 15 of 2009 is directly and substantially in issue in previously instituted suit i.e. T.S. No. 22/97, has been rejected.

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To bring forth his point, learned counsel for the petitioner submits that suit property in both the cases are same. In the previous suit, plaintiff, who is respondent herein, is a defendant. He submits that by an order passed in the previous suit, the

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Patna High Court CWJC No.19418 of 2012 (2) dt.18-09-2013 P2/4

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plaintiff of the subsequent Eviction Suit No. 15 of 2009, has been injuncted from alienating the suit property or altering the nature of the suit property in any manner.

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In such circumstance, he submits that the Court ought to have applied Section 10 of ‘the Code’ and ought to have stayed proceedings in the subsequent suit.

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Before I come to the provisions of Section 10 of ‘the Code’, the brief facts need to be stated. In the subsequent suit, which is Eviction Suit No. 15 of 2009, the Respondent is the Plaintiff and has sought for eviction of the petitioner on the ground of his personal necessity.

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The petitioner is not a party to the previous suit being T.S. No. 22/97. Admittedly, in the previous suit, being T.S. No. 22 of 97, the plaintiff has sought recovery of possession against the Respondent. Thus, the fact that the property is in possession of the respondent who is plaintiff in the second suit, is not in dispute. Section 10 of the Code of Civil Procedure reads thus:-

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“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

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Patna High Court CWJC No.19418 of 2012 (2) dt.18-09-2013 P3/4

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any Court beyond the limits of India established or continued by the Central government and having like jurisdiction, or before the Supreme Court.”

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As has been noted above, previous suit is not between the

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same parties. Nature of the two suits are absolutely different inasmuch as in the previous suit, the plaintiff of that case has sought for recovery of possession whereas in the subsequent suit i.e. Eviction Suit No. 15 of 2009, the Respondent who is plaintiff in the said suit has sought for Eviction of the petitioner on the ground of his personal necessity.

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In view of the above, Section 10 of ‘the Code’ cannot have any application in the facts and circumstances of the case and the Court below has rightly rejected the application under Section 10 of ‘the Code’.

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Learned counsel for the petitioner, however, submits that in the facts and circumstances of the case, both the cases should be directed to be heard side-by-side. He has placed reliance upon a Supreme Court judgment reported in A.I.R. 2004 (SC) 1687 (M/s Chiti Valasa Jute Mills V. M/s Jaypee Rewa Cement) to contend that this Court is not denuded with the power to transfer the suit to the same Court, where the title suit is pending for the ends of justice.

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I do not find any reason for passing such order in the

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Patna High Court CWJC No.19418 of 2012 (2) dt.18-09-2013 P4/4

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facts and circumstance of the present case inasmuch as Eviction Suit has been filed on the ground of personal necessity which is to be adjudicated upon by following the summary procedure.

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The submission made on behalf of the petitioner cannot be accepted. This application is accordingly dismissed.

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(Chakradhari Sharan Singh, J.)

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Saif/-

Subodh Sagar @ Subodh Sagar Sharma v. Saroj Kumar

Case brief

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Subodh Sagar @ Subodh Sagar Sharma v. Saroj Kumar

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