PUKHRAJ D JAIN Vs. G GOPALAKRISHNA

JUDGEMENT

(1.) This appeal by special leave has been preferred by the defendants against the judgment and order dated 17-3-1997 of High Court of Karnataka by which the Regular First Appeal preferred by the plaintiff was allowed and case was remanded to the trial Court with certain directions.

(2.) In order to understand the controversy involved it is necessary to set out the facts which are little involved.

(3.) The only ground urged in the appeal preferred by respondent No. 1 in the High Court was that as he had filed an application under Section 10 CPC on 21-10-1993 seeking stay of his suit (OS No. 1629 of 1988), it was obligatory upon the trial Court to consider the said application first before deciding issues Nos. 3 and 4. The High Court has observed that the defendants in the suit had sought time to file objection in reply to the application moved under Section 10 read with Section 151 of CPC seeking stay of his suit. Thereafter the suit was listed on several dates for consideration of the application but finally, after hearing the counsel for the parties, the learned Addl. City Civil Judge dismissed the suit by deciding issues Nos. 3 and 4 and the application under Section 10 CPC was not at all considered. It was obligatory on the part of the learned Addl. City Civil Judge to have considered the application moved under Section 10 CPC at the first instance before deciding issues Nos. 3 and 4. The High Court has held that the course adopted by the learned Addl. City Civil Judge in not deciding the application moved by the plaintiff and in proceeding to decide issues Nos. 3 and 4 was wholly illegal. On these findings the judgment and decree of the Additional City Civil Judge were set aside and the case was remanded to the court of Additional City Civil Judge with a direction to dispose of the application under Section 10 read with 151 CPC moved by the plaintiff on priority basis.