DIWAN GIRI Vs. CIVIL JUDGE (J.D.), HALDWANI

JUDGEMENT

(1.) BY means of this writ petition, the petitioners have prayed for to issue a writ or direction for setting aside the order dated 29.08.2005 passed by Civil Judge (J.D.), Haldwani, District Nainital in Civil Suit No. 40 of 1992 whereby the order dated 04.12.1995 passed by the Civil Judge (J.D) in the above suit was recalled.

(2.) BRIEF facts giving rise, according to the petitioners, are that the petitioners were the defendant in Suit No. 27/53 of 1991 -92, Chanar Giri vs. Mohan Giri & others a partition suit under Section 176 of the U.P.Z.A. & L.R. Act. During the pendency of the above suit, respondent No. 2 filed a Civil Suit No. 40 of 1992 before the court of Civil Judge (J.D.), Haldwani. An application (64C) has been filed by the petitioners in the above civil suit to stay the proceeding before it till the disposal of the suit pending before the revenue court. The learned Civil Judge (J.D.), after hearing the parties allowed the said application (64C) and stayed the proceedings of Civil Suite pending before him vide order dated 04.12.1995. As the order of stay of suit, under Section 10 of C.P.C., has been passed by the learned Civil Judge (J.D.) in suit No. 40 of 1992 pending before him, the learned Civil Judge considering the judgment of Hon'ble Apex Court in National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara reported in : AIR 2005 Supreme Court 242 vide order dated 29.08.2005 suo moto recalled his earlier order dated 04.12.1995 whereby the proceeding was stayed. Against the said order, the petitioners have filed the present writ petition.

(3.) FROM the perusal of the record it transpires that the learned Civil Judge (J.D.) recalled his order considering the judgment of Hon'ble Apex Court in National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara reported in : AIR 2005 Supreme Court 242 wherein it has been held that the court can exercise its power under Section 10 of C.P.C., if both the suits are pending in the same court having jurisdiction to hear the suit. Therefore, the learned Civil Judge (J.D.) recalled its order.