Umeshchand Jain vs Abhaychand Jain (Dead) Thr. Lrs ...
2023 Latest Caselaw 5816 MP

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                                MISC. PETITION No. 6265 OF 2022


 IN THE HIGH COURT OF MADHYA PRADESH

                 AT G WA L I O R
                       BEFORE
       HON'BLE SMT. JUSTICE SUNITA YADAV

              ON THE 11th OF APRIL, 2023

            MISC. PETITION No. 6265 of 2022

BETWEEN:-
UMESHCHAND JAIN S/O LATE SHRI MOOL
CHAND JAIN, AGED ABOUT 75 YEARS,
OCCUPATION: ADVOCATE, R/O OPP. KOTWALI,
GUNA (MADHYA PRADESH)
                                          .....PETITIONER
(BY MR. ABHISEHK SINGH BHADAURIA - ADVOCATE)

AND
1. ABHAYCHAND JAIN (DEAD) THR. LRS SMT.
   SUKHWATI   JAIN   W/O   LATE    SHRI
   ABHAYCHAND JAIN, AGED ABOUT 70
   YEARS, OCCUPATION: HOUSE WIFE, R/O
   WARD NO. 17, ASHOKNAGAR (MADHYA
   PRADESH)
2. AKSHAY   KUMAR     JAIN   S/O  LATE
   ABHAYCHAND JAIN, AGED ABOUT 56
   YEARS, OCCUPATION: BUSINESS, R/O
   WARD NO. 17, ASHOKNAGAR (MADHYA
   PRADESH)
3 AJAY KUMAR JAIN S/O LATE ABHAYCHAND
   JAIN,  AGED     ABOUT    50   YEARS,
   OCCUPATION: BUSINESS R/O WARD NO.17,
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                                         MISC. PETITION No. 6265 OF 2022

   ASHOKNAGAR (MADHYA PRADESH)
                                                 .....RESPONDENTS
(BY MR. BHAGWAN RAJ PANDEY - ADVOCATE)
      This petition coming on for Admission this day, the court

passed the following:

                              ORDER

This petition under Article 227 of Constitution of India has

been filed against the order dated 22.11.2022 passed in Civil Suit

No.2-A/2015, by which 1st District Judge, Ashoknagar has allowed

the application filed by the defendants/respondents under Section

10 CPC for staying proceeding of present civil Suit No. 2-A/2015

till the decision of Second Appeal No.1847 of 2021 pending before

this Court.

2. Factual matrix of the case are in brief are that the

plaintiff/petitioner has instituted the present suit for declaration of

title, permanent injunction, recovery of possession as well as mesne

profits against the original defendant-Abhaychand Jain with regard

to disputed house claiming himself to be owner on the basis of oral

MISC. PETITION No. 6265 OF 2022

partition dated 01.11.1970 as well as registered acknowledgment of

partition dated 27.07.1972.

3. Previously the respondent/defendant Abhaychand instituted a

civil suit No. 8-A/2007 for declaration of title and permanent

injunction against Amolakchand and 8 others including the present

petitioner challenging the oral partition dated 01.11.1970 as well as

registered acknowledgment of partition dated 27.07.1972 and

sought declaration of 1/7 share and permanent injunction.

4. The defendants No. 1 to 6 of the previous suit appeared and

filed written statement denying the plaint allegations and relying

upon the oral partition as well as on acknowledgment of partition

and on interalia contentions prayed for dismissal of suit.

5. The defendant in the present suit namely Abhaychand moved

an application under section 10 CPC for stay of proceeding of

present civil suit till final decision of previously instituted civil suit

no.8-A/07. The learned trial court after hearing arguments on the

MISC. PETITION No. 6265 OF 2022

application, allowed the application vide its order dated 15.09.2017

and stayed the proceedings of present civil suit till the decision of

previously instituted civil suit No.8-A/2007. Being aggrieved by the

order dated 05.09.2017, petitioner preferred MP 1835/2017.

However, when the earlier civil suit was dismissed under Order 7

Rule 11 of CPC, the MP 1835/2017 was dismissed as withdrawn

having rendered infructuous on 19.12.22.

6. In the previous suit, an application under Order 7 Rule 11

CPC was filed by the petitioner. Learned trial court after hearing

both the parties and after giving several opportunities for payment

of court fees allowed the application and dismissed the suit.

Thereafter respondents moved before this Court and the Court

granted further extension of time and opportunity for deposition of

court fees but the respondents did not submit the court fees before

the learned trial court. Accordingly vide order date 03.04.2018 suit

was finally dismissed.

7. By availing the statutory remedy LRS. of Abhaychand filed

MISC. PETITION No. 6265 OF 2022

Civil Appeal before 1st District Judge, Ashoknagar against the order

dated 3.4.2018 bearing Case No. RCA18/2021 which was also

dismissed, confirming the previous order vide order dated

07.12.2021. Against the judgment and decree, respondents have

filed second appeal No.1847/2021 which is still pending.

8. After dismissal of the suit under Order7 Rule 11 of CPC, the

the present civil suit was filed. Thereafter, respondents filed an

application under section 151 CPC to stay the proceedings of the

present/subsequent civil suit reply of which was filed by the

petitioner. Learned trial court after hearing both the parties and after

having considered the facts and circumstances of the case dismissed

the application vide its order dated 01.12.2018. Respondents being

aggrieved by the said order filed a Misc. Petition which was

registered as 9/2019 before this Court. The same was dismissed

having rendered infructuous after dismissal of earlier civil suit

under Order 7 Rule 11 of CPC.

9. During pendency of second appeal, respondents filed an

MISC. PETITION No. 6265 OF 2022

application under Section 10 CPC with the prayer to stay the

proceedings of the present civil suit. Petitioner filed reply to the

said application. Learned trial court allowed the application vide

impugned order dated 22.11.2022. Hence, present petition.

10. Learned counsel for the petitioner has argued that the order

passed by the learned 1st Additional District Judge, Ashoknagar is

not only illegal but also without jurisdiction and is liable to be set-

aside. It has further argued that while passing the impugned order,

learned Court below has erred in exercising jurisdiction vested in it,

hence, the impugned order (Annexure P/1) deserves to be set aside.

The learned Court below has erred in allowing the application filed

under Section 10 CPC without considering the averments made in

previous suit as well as in the present suit so also the issues

involved in both the suits and relief(s) prayed therein, which has

vitiated the impugned order passed by learned Court below. To

support his arguments, learned counsel for the petitioner has relied

upon the cases of Aspi Jal and another Vs. Khushroo Rustom

MISC. PETITION No. 6265 OF 2022

Dadyburjor reported in (2013) 4 SCC 333, ONGC Ltd. Vs.

Modern Construction and Company reported in (2014) 1 SCC

648, the decision rendered by this Court in W.P. No. 8778 of 2016

(Hanuman Das Guru Swami Purushottam Vs. Sapna

Choudhary and Ors) decided on 03.11.2016 and the case of

Leelawat Patel Vs Santosh Singh decided on 9.5.22 by this court

in M.P. No. 6483 of 2019 and argued that since the entire subject

matter of both the suits are not directly and substantially the same,

therefore, impugned order be set-aside.

11. On the other hand, learned counsel for the respondents

submits that the impugned order is in accordance with the settled

principles of law and prays to dismiss the present petition.

12. Heard the counsel for the parties and perused the material

available on record.

13. The perusal of pleadings of civil suit no. 8-A/2007 filed

before learned Ist Civil Judge, Class-I as well as the present civil

MISC. PETITION No. 6265 OF 2022

suit reveal that the alleged oral partition dated 01.11.1970 as well as

acknowledgment of partition dated 27.07.1972 are the subject

matter in both cases. Respondent- Abhaychand filed earlier civil

suit No. 8-A/2007 challenging the said oral partition dated

01.11.1970 and acknowledgment of partition dated 27.07.1972 and

claimed 1/7 share. In the present civil suit the petitioner/plaintiff has

also claimed his title on the basis of said oral partition dated

01.11.1970 and acknowledgment of partition dated 27.07.1972. The

property in question in this civil suit is also subject matter of earlier

civil suit No.8-A/2007. Any finding on oral partition dated

01.11.1970 and acknowledgment of partition dated 27.07.1972 by

the court in the earlier suit will operate as resjudicata in the present

suit. The object underlying Section 10 is to avoid two parallel

trials on the same issue by two Courts and to avoid recording of

conflicting findings on issues which are directly and substantially in

issue in previously instituted suit. In these circumstances learned

trial Court has rightly allowed the application filed under Section 10

MISC. PETITION No. 6265 OF 2022

of CPC in the light of the fact that second appeal No.1847/2021 is

still pending against dismissal of earlier civil suit.

14. Consequently, the petition sans merits is hereby dismissed.

(Sunita Yadav) Judge (LJ*)

Digitally signed by MONIKA SHARMA

MONIKA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=1cbbae26c87c00013f5046748e62527c7 ddf7dd9146694af9eed96f47a359612,

SHARMA pseudonym=8180EC3871BD176BD2DDA05FB4B DBDB9D75EA511, serialNumber=467E3B08B967B1DB89B83343F45 29ACCC8C299CC7F76C573D43B2B9074222453, cn=MONIKA SHARMA Date: 2023.04.13 14:50:58 +05'30'