[Cites 4, Cited by 0]
Orissa High Court
Jogi Jena vs Tikina @ Parbati Jena And ..... Opposite ... on 11 March, 2026
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CMP No.318 of 2025
Jogi Jena ..... Petitioner
Represented by Adv. -
Banshidhar Satapathy
-versus-
Tikina @ Parbati Jena and ..... Opposite Parties
others
Represented by Adv. -
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR
MOHAPATRA
ORDER
11.03.2026
Order No.
04. 1. This matter is taken up through Hybrid mode.
2. Heard learned counsel for the Petitioners. Perused the CMP
application as well as the prayer made therein.
3. By filing the present CMP application under Article 227 of the
Constitution of India, the Petitioner has approached this Court being
aggrieved by order dated 28.09.2024 passed in C.S. No.90 of 2021
by the learned Civil Judge (Jr. Div.), Puri, thereby rejecting the
application of the Petitioner filed under Section 10 read with Section
151 of CPC to stay the further proceeding in the pending C.S. No.90
of 2021 on the ground that an appeal bearing RFA No.11 of 2019
involving the self-same subject matter is pending before the District
Judge, Puri.
4. Learned counsel for the Petitioner at the outset contended that
the defendant in the present suit filed C.S. No.135 of 2015 against
the plaintiff of the suit for declaration of right, title, interest and
confirmation of possession over the subject matter of the present
suit. The said C.S. No.135 of 2015 was disposed of on contest on
27.12.2018, and accordingly, the suit was dismissed. As against the
dismissal of the suit, the plaintiff in C.S. No.135 of 2015 has
approached the learned First Appellate Court, i.e. the Court of
learned District Judge, Puri by filing an appeal bearing RFA No.11
of 2019. During the pendency of the aforesaid appeal before the
learned Court of District Judge the present suit bearing C.S. No.90
of 2021 was filed by the Opposite Parties-plaintiffs arraying the
Petitioner as defendant. The defendant on his appearance filed an
application under Section 10 read with Section 151 of CPC with a
prayer for stay of further proceeding in the subsequent suit on the
ground that an appeal bearing RFA No.11 of 2019 is still pending
before the learned District Judge, Puri for disposal.
5. Learned counsel for the Petitioner at the outset contended that
the subject matters in both the suits are same and the parties are also
same. Therefore, the subsequent suit falls within the ambit of
Section 10 of CPC. Accordingly, the defendants after their
appearance moved an application at the first flush with a prayer for
stay of further proceeding in the subsequent suit, awaiting the
outcome of the first suit. Such application having been rejected by
the learned trial Court vide order dated 28.09.2024 at Annexure-3,
the defendant-Petitioner has approached this Court challenging such
order. In course of his argument, learned counsel for the Petitioner
contended that although the subject matters of the dispute in both the
suits are same and that the parties are same, the learned trial Court
should have stayed the further proceeding in the subsequent suit.
Further, referring to the impugned order dated 28.09.2024, the
learned counsel for the Petitioner further submitted that the learned
trial Court has committed an illegality in rejecting the prayer of the
Petitioner under Section 10 of CPC for stay of further proceeding in
the present suit.
6. On a careful examination of the submissions made by the
learned counsel for the Petitioner, further on a close scrutiny of the
documents annexed to the CMP application as well as the impugned
order dated 28.09.2024, this Court observed that the learned trial
Court while considering the application of the Petitioner under
Section 10 read with Section 151 of CPC has disposed of the
application by passing a speaking and reasoned order. The learned
trial Court after analyzing the fact as well as the law has come to a
conclusion that the provision contained in Section 10 of CPC would
not be applicable to the facts of the Petitioner's case. While
analyzing the factual background in the light of Section 10 of CPC,
the learned trial Court has also referred to several judgments of this
Court as well as the Hon'ble Supreme Court. While dismissing the
application of the Petitioner, the learned trial Court has come to a
specific finding that the issues involved in both the suits are different
although the subject matter involved in both the suit are similar. To
apply the provisions contained in Section 10 of the CPC with regard
to stay of the subsequent suit, this Court would like to reiterate the
position of law that the principles governing Section 11 of the CPC
shall also apply while evaluating the applicability of Section 10 of
CPC to a subsequent suit. Thus, the learned trial Court is required to
examine as to whether the issue, the subject matter, the parties and
the prayer are similar in both the suits. Only in such eventuality the
learned trial Court would be well placed to exercise its jurisdiction
under Section 10 of the CPC to stay the subsequent suit. In the
present case, the learned trial Court has come to a specific finding
that the issues involved in both the suits are different. Thus, this
Court finds no illegality in the impugned order dated 28.09.2024.
7. However, taking into consideration the fact that the appeal is
of the year 2019 and that the same has matured for hearing in the
meantime, the learned First Appellate Court shall do well to take up
the appeal for hearing and make every endeavor to dispose of the
same as expeditiously as possible, preferably within a period of three
months. Parties to the appeal shall cooperate with the learned First
Appellate Court for an early disposal of the appeal. Further, liberty
is granted to the Petitioner to move an application before the learned
trial Court to defer the judgment in the subsequent suit till disposal
of the appeal by the Appellate Court. In the event any such
application is filed, the same shall be considered on its own merit by
the learned trial Court. Since this order has been passed in the
absence of the Opposite Parties, liberty is granted to the Opposite
Parties to seek for variation/ modification or this order in the event
the Petitioner has suppressed any material fact or misled this Court
on any factual aspect of the dispute.
8. With the aforesaid observation/direction, the CMP application
stands disposed of.
( Aditya Kumar Mohapatra )
Judge
S.K. Rout
Reason: Authentication Page 4 of 4.
Location: High Court of Orissa, Cuttack
Date: 13-Mar-2026 17:50:30
