Madhya Pradesh High Court
Rajendra Raje vs Smt. Kalpana Raje on 16 February, 2024
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 16 th OF FEBRUARY, 2024
MISC. PETITION No. 5431 of 2022
BETWEEN:-
RAJENDRA RAJE S/O LATE SHRI RAM SINGH RAJE,
AGED ABOUT 41 YEARS, OCCUPATION: SERVICE F-54
JAGJEEVAN NAGAR GANDHI ROAD MORAR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI PRASHANT SHARMA - ADVOCATE)
AND
SMT. KALPANA RAJE W/O RAJENDRA RAJE D/O SHRI
JADISH PRASAD MOURYA, AGED ABOUT 29 YEARS, 429
SHEEL NAGAR BAHODAPUR (MADHYA PRADESH)
.....RESPONDENT
This petition coming on for admission this day, th e court passed the
following:
ORDER
1. The present petition, under Article 227 of the Constitution of India, has
been filed by the petitioner against the order dated 23.09.2022 passed by the
Court of Principal Judge, Family Court, Gwalior in Case No.315-A of 2021
(HMA) whereby while invoking the provisions under Section 10 of the Code of
Civil Procedure, 1908, the suit for divorce filed by the petitioner/husband under
Section 13(1) of the Hindu Marriage Act, 1959 was kept in abeyance till
decision of the appeal preferred by the respondent/wife against the judgment
and decree obtained by the present petitioner under Section 9 of the Act of
1955 which is pending before this Court being number as F.A.No.111 of 2014.
2. Learned counsel while assailing the impugned order submits that the
said order is de-hors the provisions contained under Section 10 of CPC which
provides for stay of the suit in which the matter in issue was 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 having
jurisdiction to grant the relief claimed.
3. It was further submitted that earlier the petitioner preferred an
application under Section 9 of the Act of 1955 which was allowed and vide
order dated 28.04.2014, the present respondent was directed to live with the
petitioner but instead of coming back, the present respondent preferred an
appeal which is pending before this Court as First Appeal No.111 of 2014.
4. It was further submitted that since the respondent didn't obeyed the
order passed under Section 9 of the Act of 1955, therefore, the present
petitioner was constrained to move an application under Section 13 of the Act
of 1955 seeking divorce in the year 2014 itself. In the year 2022, an application
under Section 10 of CPC was moved by the respondent for stay of the
proceedings under Section 13 of the Act of 1955 on the ground of the
pendency of the first appeal preferred at her instance against the judgment and
decree passed by the learned Family Court whereby the application under
Section 9 of the Act of 1955 preferred by the petitioner was allowed.
5. It was further submitted that on the basis that since it's a matrimonial
dispute and in one way or the other, the subject matter of the appeal as well as
the suit for divorce is the same, the learned Trial Court had allowed the
application under Section 10 of CPC and had kept the suit for divorce in
abeyance, which is wholly perverse, as admittedly, under Section 9 of the Act
of 1955, the petitioner had sought restitution of conjugal rights which was
allowed and though the respondent was directed to live with the present
petitioner, she chose to file an appeal which itself goes to show that she was
reluctant to live with the present petitioner and therefore, a cause of action arose
to the petitioner to file an application under Section 13 of the Act of 1955
seeking divorce and since the cause of action of both the applications are
altogether different even the reliefs which are claimed therein are not the same
though the parties were the same therefore, it doesn't attracted the provisions of
Section 10 of CPC, therefore, the order impugned is per se illegal.
6. On the basis of the above submissions, it was prayed that the present
petition be allowed by setting aside the order impugned herein and as the
application preferred by the present petitioner under Section 13(1) of the Act of
1955 is of year 2014, the learned Family Court concerned be directed to
conclude the proceedings within a time bound framed.
7. Heard counsel for the petitioner and perused the record.
8. Since this Court finds that the impugned order is per se illegal for
reasons mentioned below, therefore, it doesn't find it necessary to issue notice
to the other side.
9. Section 10 of CPC provides for stay of stay in which the matter in
issue was/is also directly and substantially in issue in a previously instituted suit.
For ready reference Section 10 of CPC is reproduced hereinbelow:
"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 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 Courts in India from trying a suit founded on the
same cause of action."
10. The fundamental test to attract Section 10 is whether on final decision
being reached in the previous suit, such decision would operate as res judicata
in the subsequent suit. Section 10 applies only in case where the whole of the
subject matter in both the suits is identical. The key words in Section 10 are
"the matter in issue is directly and substantially in issue" in the previous
instituted suit. The words "directly and substantially in issue" are used in contra
distinction to the words "incidentally or collaterally in issue". Therefore, Section
10 would apply only if there is identity of the matter in issue in both the suits,
meaning thereby, that the whole of subject-matter in both the proceedings are
identical.
11. The object underlying Section 10 is to prevent Courts of concurrent
jurisdiction from simultaneously trying two parallel suits in respect of the same
matter in issue. The object underlying Section 10 is to avoid two parallel trials
on the same issue by the two Courts and to avoid recording of conflicting
findings on issues which are directly and substantially in issue in previously
instituted suit. The language of Section 10 suggests that it is referable to a suit
instituted in the Civil Court and it cannot apply to proceedings of other nature
instituted under any other statute.
12. Thus, from the above legal position, it emerges that the learned Trial
Court had misdirected itself in coming to a conclusion that the issue involved in
the appeal pending against allowing of the application under Section 9 of the
Act of 1955 preferred by the petitioner is akin to issue involved in the
proceedings under Section 13 of the Act of 1955 seeking divorce, thus, this
Court finds that the matter in issue in the present application is not directly and
substantially in issue in the previously proceedings which were instituted under
Section 9 of the Act of 1955.
13. Accordingly, the impugned order is wholly unsustainable and
therefore it is hereby set aside. The learned Family Court concerned is directed
to proceed with the matter after issuance of notice to the respondent herein and
conclude the same as expeditiously as possible preferably within a period of
one year from the date of receipt of certified copy of this order.
14. With the aforesaid observations and directions, the present petition is
disposed off. Let the record be sent back to the Family Court.
(MILIND RAMESH PHADKE)
JUDGE
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