Bankey Behari Lal Aggarwal & ... vs Shiv Mandir (Gufawala) & Others
2011 Latest Caselaw 5965 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment: 07.12.2011

+            CM (M) No. 1816-24/2006

BANKEY BEHARI LAL AGGARWAL & OTHERS ........... petitioners

                            Through:   Mr. P.R. Aggarwal, Advocate.

                       Versus

SHIV MANDIR (GUFAWALA) & OTHERS      ..........Respondents
                  Through: Mr. Anil Sapra, Sr. Advocate
                           with Mr. Maneesh Goyal,
                           Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1. Order impugned is the order dated 04.05.2002 vide which

on an application filed by the defendant under Section 10 of the

Code of Civil Procedure (hereinafter referred to as the „Code‟) the

suit proceedings i.e. suit No. 207/2002 (representative suit under

Sections 91 & 92 of the Code) had been stayed.

2. The first suit No. 123/2000 had been filed by four plaintiffs

Bankey Behari Lal Aggarwal & others against Shiv Mandir

(Gufawala) and others; this was a suit for declaration, permanent

and mandatory injunction as also for rendition of accounts. The

averments made in plaint and the prayers which were six in

number have been perused. The gist of the case of the plaintiffs

was that the defendants who are running the Shiv Mandir Society

must render accounts of the manner in which the funds of the

society are being utitlized; no third party interest qua the property

of the society should be created during the pendency of the suit;

the plaintiffs have a right to get their membership renewed and

persons who are aspirants and willing to become members should

also be considered on the payment of necessary charges.

Admittedly this suit was in progress at the time when the second

suit was filed. It is not in dispute that in this suit an application for

amendment had been filed to make it a representative suit which

prayer had been rejected.

3. The second suit i.e. Suit No. 207/2002 was filed by 10

plaintiffs against six defendants; this was a suit under Sections 91

& 92 of the Code. Admittedly before the suit could proceed, leave

had to be taken from the concerned Court which had been

granted and the suit proceeded. Vide the aforenoted application

under Section 10 of the Code filed by the defendants a prayer was

made seeking a stay of the present proceedings as the matter in

issue in the present suit and the earlier suit were the same and as

such the second suit could not proceed. The averments made in

the present suit as also prayers made therein have been perused.

The gist of this second suit which is a wider ambit in a

representative capacity was to the same effect; prayer being that

a decree of declaration be passed in favour of the plaintiffs and

against the defendants declaring that the defendants have no

right to manage and control the administration of the temple,

namely Shiv Mandir Sabha (Regd.) Society as also a direction to

open the membership of the Society for the residents of the area

who wish to become members on their paying requisite fee.

4. The Court below had adverted to the provisions of Section

10 of the Code and had rightly held that the two suits relate to the

same matters in issue; the earlier suit and the later suit being on

the same matter in issue, the second suit was rightly stayed.

5. The object of Section 10 is to prevent the Courts of

concurrent jurisdiction from simultaneously trying two parallel

suits between the same parties in respect of the same matter in

issue. Though the heading of this section is "stay of suit", it does

not operate as a bar to the institution of the subsequent suit. It is

only the trial of the later suit that is not to be proceeded with. The

object is to avoid conflicting decisions by the two competent

Courts over the same matter as also to save the time of the Court.

The impugned order had correctly noted all these parameters

going into the pleadings of both the suits and having drawn the

conclusion that the second suit is liable to be stayed. Merely

because the second suit was a representative suit under Sections

91 & 92 of the Code would not take away the matter in issue

which was to be adjudicated upon by the second Court which was

substantially in issue before the first Court. Impugned order

staying the second suit suffers from no infirmity.

6. Dismissed.

INDERMEET KAUR,J DECEMBER 07, 2011 A