Orissa High Court
Sailabala Swain & Ors vs Jyotsnamayee Swain & Ors on 10 May, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO.383 OF 2022
Sailabala Swain & ors. .... Petitioners
Mr.S.K.Acharya, Adv.
-versus-
Jyotsnamayee Swain & ors. .... Opposite Party(s)
CORAM:
JUSTICE BISWANATH RATH
ORDER
Order 10.5.2022
No.
1. 1. Heard learned counsel for the Petitioners.
2. The CMP involves rejection of an Application under Section
10 of C.P.C. filed in the subsequent Suit bearing C.S. No.32 of 2003
seeking stay of the proceeding of the said Suit pending finalization
of C.S. No.57 of 2002.
3. Undisputedly, there have been two Suits; one being C.S.
No.57 of 2002 seeking declaration of right, title and interest,
confirmation of possession and injunction however involving one of
the properties involved in C.S.No.32 of 2003. C.S. No.32 of 2003 is
a Suit for partition as well as declaration undisputedly involving
several other properties along with the properties involved in
C.S.No.57 of 2002.
4. Taking this Court to the grounds in the Application under
Annexure-4 and the reason of rejection of such Application, vide the
// 2 //
impugned order, learned counsel for the Petitioners contended that
first of all, there is wrong recording of non-production of the Plaint
in other case in making such a claim, as there is already production
of such document, further reason the trial court is not satisfied with
the attempt of the Petitioners under the provision of Section 10 of
C.P.C. is not justified on the premises that both the Suits involve
almost same property and same parties.
5. Considering the submission of the learned counsel for the
Petitioners and at the stage of admission, this Court perused the
Plaints and their Cause Titles involving both the Suits bearing
C.S.No.57 of 2002 and 32 of 2003 along with the prayer and the
properties involved therein. In examination of the above, this Court
finds, the first Suit was involved one of the properties involved in
the subsequent Suit. The subsequent Suit involves so many
properties and there has been multiple prayers involving also a
prayer for partition. In this scenario and at this stage taking into
consideration the request of the learned counsel for the Petitioners at
least there should be hearing of C.S. No.57 of 2002 ahead of C.S.
No.32 of 2003, this Court finds, in such contingency, there was no
requirement of bringing Application under Section 10 of C.P.C.
6. This Court, therefore, observes, there was no requirement of
bringing such Application at all. Accordingly, this Court is not
// 3 //
inclined to interfere with the impugned order. This Court in disposal
of the CMP further observes, in the event the Petitioners are
interested for trial of C.S. No.57 of 2002, for this Court finds, the
judgment and decree involving C.S. No.57 of 2002 will be very
much dependent in the determination of C.S. No.32 of 2003,
Application, if any, filed for hearing of C.S. No.57 of 2002 ahead of
C.S. No.32 of 2003, such Application shall be considered
appropriately.
(Biswanath Rath)
Judge
M.K.Rout
