Orissa High Court
Dibakar Nayak And Another vs Banshidhar Nayak on 18 April, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP NO. 390 OF 2023
Dibakar Nayak and another .... Petitioners
Mr. Manoranjan Mishra, Advocate
-versus-
Banshidhar Nayak .... Opp. Party
CORAM:
JUSTICE K.R. MOHAPATRA
ORDER
Order No. 18.04.2023
1. 1. This matter is taken up through hybrid mode.
2. Order dated 10th March, 2023 (Annexure-1) passed by
learned Civil Judge (Senior Division), Bhadrak in C.S. No. 143
of 2014 is under challenge in this CMP, whereby an application
filed by the Defendants-Petitioners under Section 10 C.P.C. to
stay further proceedings of the suit till disposal of C.S. No.160 of
2013 has been rejected.
3. Mr. Mishra, learned counsel for the Petitioners submits
that on 17th May, 1994, a registered 'Bantan Patra' (registered
partition deed) was executed between the co-sharers of the joint
family of late Sudarsan Nayak. One Musi Nayak, daughter of
said Sudarsan Nayak, filed C.S. No. 160 of 2013 assailing the
validity of said Bantan Patra as she was not a party to the said
partition deed. The said suit is still pending for consideration.
During pendency of the suit, the Defendant No.7 in C.S. No.160
of 2013 filed the present suit, i.e. C.S. No. 143 of 2014, for
permanent injunction restraining the present Petitioners from
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entering upon the suit land fell to his share by virtue of said
Bantan Patra. The Defendant Nos.1 and 2 in C.S. No.160 of
2013 are the Defendants in the present suit. Hence, the
Defendants-Petitioners filed an application under Section 10
C.P.C. to stay further proceeding of the present suit till disposal
of C.S. No.160 of 2013 as the partition deed on the basis of
which the parties are claiming right over the suit property is in
question in the previous suit. It is also submitted that disposal of
C.S. No.160 of 2013 would influence the result of C.S. No.143 of
2014. Hence, a prayer was made to stay further proceedings of
C.S. No.143 of 2014 till disposal of C.S. No.160 of 2013.
4. Mr. Mishra, learned counsel for the Petitioner relied upon
the decision in the case of Hrishikesh Mohana -v- Malifula
Mohana and another, reported in 1959 (I) OJD 496 in which it
is held as under:
"3. ...............The Nagpur High Court in the Laxmi
Bank Ltd. Akola and others v. Harikisan and others
held that where the issue involved in a subsequently
instituted suit is covered by one of the issues in the
previously instituted suit, appeal in which is pending,
the subsequently instituted suit should be stayed, until
the decision of the appeal in the previously instituted
suit. It is not necessary that the subject matter of the
previous suit should be covered by the subsequent
suit. It is enough if the subject matter of the
subsequent suit is covered by the previous suit. In
paragraph 6 of the judgment, on the facts of that case,
the Nagpur High Court held that in a proper case, a
subsequently instituted suit could be stayed under
Section 151 Civil Procedure Code even though
Section 10 might not strictly apply. In Kodu Maljetha
Nanda v. Tilak Ram and others, it was held that a
suit cannot only be stayed under the provisions of
Section 10, but even under the inherent powers of the
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High Court and under the powers of General
supervision and superintendence vested in it; a suit in
a particular Court can be stayed pending the decision
of another suit in different Court."
4.1 In view of the above, Mr. Mishra, learned counsel
submits that even though the principles of Section 10 C.P.C. is
not applicable to the present case, but, in the interest of justice
and to protect the lis, the Court may exercise discretion under
Section 151 C.P.C. to stay the later suit during pendency of the
former. This aspect was not considered by learned trial Court
while adjudicating the matter. Hence, he prays for setting aside
the impugned order under Annexure-1 and to stay further
proceedings of C.S. No.143 of 2014 during pendency of C.S.
No.160 of 2013.
5. Upon hearing learned counsel for the Petitioners and on
perusal of the record, it appears that Musi Nayak, the Plaintiff in
C.S. No. 160 of 2013, is not a party to the present suit. No relief
is claimed against said Musi Nayak in the present suit. It further
appears that parties to C.S. No.143 of 2014 are contesting the suit
relying upon the registered Bantan Patra. Although a part of the
suit property in C.S. No.160 of 2013 is involved in the present
suit, but the issues are different. The issues involved in both the
suits are also different. In that view of the matter, neither Section
10 nor Section 151 C.P.C. can be resorted to stay further
proceedings of C.S. No.143 of 2014 during pendency of C.S.
No.160 of 2013. The ratio decided in the case of Hrishikesh
Mohana (supra) is not applicable to the case at hand in view of
the discussions made above.
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6. In view of the above, this Court is of the considered
opinion that learned trial Court has committed no error in
dismissing the petition under Section 10 C.P.C. filed by the
Defendants-Petitioners. Accordingly, the CMP being devoid of
any merit stands dismissed.
Urgent certified copy of this order be granted on proper
application.
(K.R. Mohapatra)
bks Judge
