Madhya Pradesh High Court
Barik vs Deleted As Per Court Order Dt. ... on 3 October, 2024
NEUTRAL CITATION NO. 2024:MPHC-IND:28919
1 MP-334-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 3 rd OF OCTOBER, 2024
MISC. PETITION No. 334 of 2023
BARIK AND OTHERS
Versus
DELETED AS PER COURT ORDER DT. 29/07/2024 AND OTHERS
Appearance:
Shri Dattatray Kale - learned counsel for the petitioners.
Shri Shailendra Shrivastava, learned counsel for the respondents no.1,
2, 4, 5, 6 & 8.
ORDER
01. This Misc. Petition under Article 227 of the Constitution of India
is preferred assailing the legality of order dated 08.12.2022 (Annexure-P/10)
and 14.12.2022 (Annexure-P/11) in Regular Civil Suit No.43/2021 by the
First Civil Judge, Junior Division, Alirajpur whereby the application under
Section 10 of the Code of Civil Procedure, 1908 has been rejected.
02. The facts of the case in brief are that the petitioners filed the civil
suit through plaint (Annexure-P/1) for declaration of title, confirmation of
possession and permanent injunction regarding house no.22 situated at ward
no.13, Jama Masjid Marg, Alirajpur on the strength of registered sale deed
dated 30.03.1996 executed by respondent no.1 in favour of father of
petitioners. The suit was contested on the ground that the so called document
is merely a mortgage deed. The case was registered as Regular Civil Suit
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No.2-A/2019 in the Court of Third Additional Judge to the Court of First
Civil Judge, Class-II, Alirajpur in which petitioners were unsuccessful. The
Regular Civil Appeal No.04/2020 was preferred and the Second District
Judge, Alirajpur vide judgment dated 29.06.2021 partly allowed the appeal
concluding that the petitioners are not the title holder of the disputed property
but protected the possession observing that the due process of law be
followed for recovery of possession. Challenging the judgment and decree of
the First Appellate Court, Second Appeal No.1091/2021 has been admitted
on 14.03.2024.
03. After the judgment of the First Appellate Court, the respondent
filed the Civil Suit No.43A/2021 through plaint (Annexure-P/5) seeking
possession of the suit house and petitioners preferred application under
Section 10 of the CPC (Annexure-P/7) and application was replied through
Annexure-P/9 submitting that High court has not stayed the proceedings of
the trial court and nothing remains to be decided.
04. The Trial Court dismissed the application recording the finding
that the parties were same in the previously instituted suit but previously
instituted suit was for declaration of title and permanent injunction whereas
subsequently instituted suit is for recovery of possession. Accordingly,
Section 10 of the CPC does not apply.
05. This petition is preferred on the ground that the trial Court
committed illegality in dismissing the application. The trial Court ignored the
settled legal position that Section 10 of the CPC has to be read with Section
11 of the CPC. Provisions of Section 10 of the CPC is fully applicable to the
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present case. Learned counsel for the petitioners in support of his submission
placed reliance on various judgments i.e. Poonamchand Vs. Murti
Madanmohanji and Others; 2007(3) M.P.L.J., 340, Dadolwa and another Vs.
Ramakant and others; 2014(2) M.P.L.J. 606, Dayaram through LRs. Vs.
Omkar and others; 2000(1) MPHT 13 (NOC) and order dated 28.02.2012
passed in W.P.No.6826/2006 passed by the High Court of Madhya Pradesh,
Bench at Indore.
Heard.
06. Counsel for the respondent opposed the prayer referring to the
case of National Institute of Mental Health & Neuro Sciences Vs. C.
Parameshwara; (2005) 2 SCC 256, specially paragraph 8 of the judgment.
Perused the record.
07. The test for attracting the Section 10 of the CPC has been laid
down in the Parmeshwara (supra) that 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
cases where the whole of the subject matter in both the suits is identical.
08. Perusal of the plaint of subsequently instituted suit (Annexure-
P/5) discloses that cause of action arose on 28.02.2020 and 29.06.2021 when
judgment and decree was passed in favour of the present respondents and
against the present petitioners.
09. Accordingly, the judgment of the trial court in Regular Civil Suit
No.2-A/2019 & Regular Civil Appeal No.04/2020 is under challenge
through second appeal and judgment in second appeal before the High Court
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of Madhya Pradesh will decide the result of subsequently instituted suit.
Thus, the trial Court committed error in dismissing the application.
10. In view of the above, this Misc. Petition under Article 227 of the
Constitution of India is allowed. The proceedings of the trial Court in
subsequent instituted suit i.e. Civil Suit No.43A/2021 through plaint
(Annexure-P/5) before the First Civil Judge, Junior Division, Alirajpur shall
remain stayed till the disposal of Second Appeal No.1091/2021.
Accordingly, Misc. Petition stands disposed of.
C.C. as per rules.
(GAJENDRA SINGH)
JUDGE
VS
