Shiv Narayan Singh vs Shiv Nath Prasad
2024 Latest Caselaw 449 Patna

Patna High Court

Shiv Narayan Singh vs Shiv Nath Prasad on 16 January, 2024

Author: Arun Kumar Jha

Bench: Arun Kumar Jha

    IN THE HIGH COURT OF JUDICATURE AT PATNA
       CIVIL MISCELLANEOUS JURISDICTION No.1193 of 2017
======================================================
Shiv Narayan Singh, S/o late Saukhi Rai, R/o Village- Mahuli, P.S. Didarganj,
District- Patna.
                                                           ... ... Petitioner/s
                                  Versus
Shiv Nath Prasad, S/o Jamuna Prasad Singh, Resident of Village- Mahuli,
P.S.- Didarganj, District- Patna.
                                                        ... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s   :       Mr. Raj Dular Sah, Advocate
For the Respondent/s   :       Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
 Date : 16-01-2024

              Heard learned counsel for the petitioner on the point of

 admission and I intend to dispose of the present petition at the

 stage of admission itself.

             2. The instant petition has been filed on behalf of the

 petitioner for setting aside the order dated 24.04.2017 passed by

 the learned Sub-Judge-III, Patna City in Title Suit No. 391 of 2011

 whereby and whereunder the petition filed under Section 10 along

 with Section 151 of           the Code of Civil Procedure by the

 petitioner/defendant has been rejected.

             3. The case of the petitioner, as it appears from the

 record, is that the respondent Shiv Nath Prasad has filed Title Suit

 No. 391 of 2011 for specific performance of contract against the

 petitioner/defendant      claiming     that    the   petitioner/defendant

 received a sum of Rs. 1,41,000/- as earnest money and executed an

 agreement for sale dated 26.05.2004 promising to execute the sale
 Patna High Court C.Misc. No.1193 of 2017 dt.16-01-2024
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         deed for the suit property. Another title suit bearing Title Partition

         Suit No. 294 of 2016 was filed by one Mohan Rai which is

         pending in the court of learned Sub-Judge-IV, Patna City and in

         the said suit the petitioner is again defendant and the share of the

         defendant is to be ascertained in the joint family property. The

         petitioner has filed a petition under Section 10 along with Section

         151 of CPC seeking stay on proceeding of Title Suit No 391 of

         2011 stating therein that in Title Partition Suit No. 294 of 2016, the

         share of the defendant and plaintiff of Title Suit No. 391 of 2011

         are to be decided. It has further been prayed that plaintiff be

         directed not to adduce his evidence until share of all co-sharer are

         decided in the partition suit as prior to the demarcation of share,

         the petitioner/defendant has no right or title to sale. In this manner

         the petitioner/defendant has filed the present petition to stay the

         Title Suit No. 391 of 2011 till the disposal of Title Partition Suit

         No. 294 of 2016. The prayer of the petitioner/defendant was

         rejected by the learned trial court vide the impugned order dated

         24.04.2017.

                      4

. Learned counsel for the petitioner submits that since

the share of the petitioner is to be decided in the partition suit, he

has got no right to transfer the same even if he entered into an

agreement of sale with the respondent/plaintiff. So it was in the

interest of justice that the suit filed for specific performance Patna High Court C.Misc. No.1193 of 2017 dt.16-01-2024

against the petitioner be stayed.

5. The dispute in the present case is within a very

narrow compass. Whether the learned trial court was right in

rejecting the prayer for stay in the Title Suit No. 391 of 2011 filed

by the respondent for specific performance of contract against the

petitioner during the pendency of Title Partition Suit No. 294 of

2016.

Section 10 of CPC reads as under:-

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 1[India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government 3***.] and having like jurisdiction, or before 4[the Supreme Court].

Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in 1[India] from trying a suit founded on the same cause of action.

6. Bare reading of the provision of Section 10 shows

there could be a stay on proceedings of subsequent suit when the

matter in issue is also directly and substantially in issue in a

previously instituted suit between the same parties or between the

parties under whom they or any of them already claim litigating Patna High Court C.Misc. No.1193 of 2017 dt.16-01-2024

under the same title. Obviously the same is not case here since the

petitioner sought stay on the proceedings of previous suit instead

of proceedings in a subsequent suit. The same is not permissible as

it is against the specific provision of law.

7. Hence, I have no hesitation in holding that the

learned trial court has rightly rejected the petition of the petitioner

and, accordingly, the same is affirmed.

8. In the result, the instant petition stands dismissed.

(Arun Kumar Jha, J) balmukund/-

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Uploading Date          19.01.2024
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