Gujarat High Court

Navnitlal Maneklal Shah vs Induben Thakorelal Shah on 18 November, 2021

Bench: B.N. Karia

      C/SCA/15293/2017                            ORDER DATED: 18/11/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15293 of 2017
==========================================================
                         NAVNITLAL MANEKLAL SHAH
                                  Versus
                    INDUBEN THAKORELAL SHAH & 1 other(s)
==========================================================
Appearance:
MR. H.J.KARATHIYA, LD. ADVOCATE FOR MR SP MAJMUDAR(3456) for
the Petitioner(s) No. 1
MR SANDIP M PATEL(5649) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
==========================================================
     CORAM:HONOURABLE MR. JUSTICE B.N. KARIA

                              Date : 18/11/2021
                               ORAL ORDER

1. Present petitioner, who is the original plaintiff before the

trial Court, has challenged the order passed blow Exh. 19 and

Exh. 29 in Special Civil Suit No. 238 of 2016 by the learned 14 th

Additional Senior Civil Judge, Vadodara (now renumbered as

Special Civil Suit No. 85 of 2018 )pending before the Court of

learned Additional Senior Civl Judge, Padra.

2. Heard learned advocates appearing for the respective

parties.

3. It is submitted by learned advocate appearing for the

petitioner that earlier Special Civil Suit No. 304 of 1998 was

filed by the petitioner on 23rd April, 1998 which is pending

before the Court of learned Principal Civil Judge, Padra, Dist.

C/SCA/15293/2017 ORDER DATED: 18/11/2021

Vadodara. That, the said suit is renumbered as Regular Civil

Suit No. 150 of 2015 wherein, the prayers were made inter alia

that the petitioner is a sole owner of the suit property based on a

registered Will dated 28.5.1986 executed by the mother of the

petitioner. The further prayer was made by the petitioner that

Will in favour of the respondents is void and nullity. Thereafter,

it is further submitted that present petitioner filed another

Special Civil Suit No. 238 of 2016 before the learned Civil

Judge (S.D.), Vadodara against the respondents seeking a relief

that the respondents be restrained by permanent injunction from

demolishing the suit property as they tried to demolish suit

property on 19.6.2016. Thereafter, on 4th August, 2016,

respondents submitted an application in Special Civil Suit No.

238 of 2016 under Section 10 of the Code of Civil Procedure,

1908, to stay the proceedings of Special Civil Suit No. 238 of

2016. That, another application Exh. 29 was submitted by the

respondents of hearing the application Exh. 19 of stay of suit

prior to hearing of injunction application - Exh.5 in Special

Civil Suit No. 238 of 2016. That, detailed reply was given by

C/SCA/15293/2017 ORDER DATED: 18/11/2021

the petitioner on 13th October, 2016. That, interim injunction

was also granted by the trial Court in favour of the petitioner

below Exh. 5 on 12th July, 2016 in Special Civil Suit No. 238 of

2016 . That, learned trial Court vide order dated 4 th July, 2017

allowed both the applications below Exh. 19 as well as Exh.29

moved by the respondents and stayed further proceedings of

Special Civil Suit No. 238 of 2016 as well as injunction

application below Exh. 5 till further order. That, staying the

application below Exh.5 praying for interim injunction was

contrary to provision of Section 10 of CPC. That, reply of the

petitioner is not at all considered properly by the trial Court.

That, injunction application of the petitioner cannot be stayed

even under Section 10 of CPC. Therefore, impugned order is

contrary to law laid down by this Court rendered in case of

Malti Vahuji and others Vs. Maharajshri Natwargopalji

Goswami reported in 1984(1) GLR 140 and also rendered in

case of Indian Bank Vs. Maharashtra State Co.operative

Marketing Federation Ltd. reported reported in 1998(5) SCC

69. Learned advocate appearing for the petitioner has also

C/SCA/15293/2017 ORDER DATED: 18/11/2021

relied upon another decision rendered in case of Senaji

Kapurchand and others Vs. Pannaji Devichand reported in

AIR 1922 Bombay 276. Hence, it was requested by learned

advocate for the petitioner to quash and set aside the impugned

order passed below Exh. 19 and Exh. 29 qua granting stay of the

application below Exh. 5 till further order dated 4th July, 2017.

4. Learned advocate appearing for the respondents has

supported the order and findings arrived at by the trial Court on

4th July, 2017 and argued that there is no error committed by the

trial Court in passing the order staying the proceedings of

Special Civil Suit No. 238 of 2016 along with another

application Exh. 5. That, on the same ground, second suit was

filed by the petitioner in connection with the same property

which was prayed in the earlier suit. That, there is no illegality

committed by the trial Court in passing the order. Therefore, this

Court cannot interfere in the impugned order passed by the trial

Court. Hence, it was requested by learned advocate appearing

for the respondents to dismiss the present petition.

5. Having heard learned advocate appearing for the

C/SCA/15293/2017 ORDER DATED: 18/11/2021

respective parties and submissions as well as documents

produced on record considering the findings arrived at by the

trial Court while deciding an application exh. 19 and 29, it

appears that earlier Special Civil Suit No. 304 of 1998 was

instituted by the petitioner on 23rd April, 1998 which was

renumbered as Regular Civil Suit No. 150 of 2015. In the said

suit preferred by the petitioner, prayer was made that the

petitioner is sole owner of the suit property based on a

registered Will dated 28th May, 1986 executed by the mother of

the petitioner. In the suit, it was further prayed that Will in

favour of the respondents is void and nullity. In the first suit

filed by the petitioner, no injunction was preferred by the

petitioner. Thereafter, as per submissions made by learned

advocate appearing for the petitioner, petitioner was constrained

to file second suit i.e. Special Civil Suit No. 238 of 2016 before

the learned Senior Civil Judge, Vadodara on 22nd June, 2016

against the respondents herein wherein, relief was sought that

respondents be restrained by permanent injunction from

demolishing the suit property. As per the contents in the second

C/SCA/15293/2017 ORDER DATED: 18/11/2021

suit filed by the petitioner on 19th June, 2016, respondents

started demolishing their suit property illegally and fresh cause

of action was arisen and hence fresh suit was filed by the

petitioner. It appears from the record that status quo order was

passed below Exh. 5 on 12th July, 2016 till written statement is

filed by the respondents. It also appears that meanwhile on 4 th

July, 2017, respondents submitted an application below Exh. 19

in Special Civil Suit No. 238 of 2016 under Section 10 of CPC

with a prayer to stay the proceedings of Special Civil Suit No.

238 of 2016. Then, respondents filed another application below

Exh. 29 with a prayer to hear the application below Exh. 19 and

stay further proceedings of Special Civil Suit No. 238 of 2016.

It also appears that detailed reply was submitted by the present

petitioner on 13th October, 2016 . As discussed above, the status

quo order was granted on 12th July, 2016 below Exh.5 in

Special Civil Suit No. 238 of 2016 . Learned trial Court, vide

order dated 4th July, 2017, stayed further proceedings of Special

Civil Suit No. 238 of 2016 as well as injunction application

below Exh. 5 till further orders. This Court would like to refer

C/SCA/15293/2017 ORDER DATED: 18/11/2021

Section 10 of CPC.

"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 1[India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government] 3[***] and having like jurisdiction, or before 4[the Supreme Court]."

6. Under Section of 10 of CPC the word "trial" was used by

the legislature. There was no prayer made in the application

below Exh.19 to stay the proceedings of application below

Exh.5 preferred by the respondent in the suit. It appears that trial

Court suo moto stayed the application below Exh. 5 till further

order in Special Civil Suit No. 238 of 2016.

7. In similar matter of this Court rendered in case of Malti

Vahuji and others (supra) , it is observed as under:-

"6. The order that the Court may pass in one application would be totally independent of the order which may be passed in the other application. Hence, it is not necessary nor convenient on the facts of the present case to hear the said two applications for interim relief to be heard and disposed of together. In any case no prejudice is likely to be caused to either party if the aforesaid two applications are heard and disposed of separately.

8. Hon'ble Apex Court rendered in case of Indian Bank Vs.

Maharashtra State Co.operative Marketing Federation Ltd.

(Supra) while dealing with the similar issues has also observed

C/SCA/15293/2017 ORDER DATED: 18/11/2021

as under:-

"Therefore, the word "trial" in section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition to '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'. The object of the prohibition contained in section 10 is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to the passing of interlocutory orders such as an order for consolidation of the later suit with earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the court has to follow according to section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section 10 is not used in its widest sense."

9. In decision of the Bombay High Court rendered in case of

Senaji Kapurchand and others Vs. Pannaji Devichand

reported in AIR 1922 Bombay 276, it is observed as under:-

"An order staying a suit under Section 10 does not prevent a Court from making interlocutory orders such as orders for a Receiver or an injunction or an order for attachment before judgment"

10 Considering the settled position of law laid down by the

Apex Court and High Court as discussed above, this Court is

of the considered view that staying the application for interim

injunction below Exh. 5 in Special Civil Suit No. 238 of 2016

filed by the petitioner was contrary to law and Section 10 of

C/SCA/15293/2017 ORDER DATED: 18/11/2021

Civil Procedure Code. Hence, impugned order passed below

Exh. 19 in Special Civil Suit No. 238 of 2016 by the learned

14th Additional Senior Civil Judge, Vadodara on 4.7.2017 to the

extent of staying proceedings of application Exh.5 for interim

injunction is hereby quashed and set aside.

11. Present petition is partly allowed. Trial Court is directed