SIVANANDAM AMMAL Vs. S KADIRESAN

JUDGEMENT

(1.) THIS case provides a glaring instance where an application under S. 10, C.P.C. is ordered without the Court applying its mind to the provisions of the said section. Under the section, a suit can be stayed only if 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 all or any of them claim litigating under the same title.

(2.) IN this case a suit was fiied by the petitioner's father for declaration of his title and for recovery of possession with past and future mesne profits against his brother and others. The suit was dismissed by the Subordinate Judge of Madurai and during the pendency of an appeal against the same, the petitioner's father died. The petitioner and other legal representatives came on record in the appeal and ultimately the appeal was allowed and the matter was remanded to the trial court for fresh disposal. The order of remand is challenged in C.M.A. 133 of 1988 pending on the file of this Court.

(3.) THIS court views with concern that the subordinate judiciary should go on ignoring the provisions of the Code of Civil Procedure very often without even looking into them and without giving any consideration to the facts of the case pending before them. Moreover, once a suit is stayed under S. 10 C.P. Code, then the Court does not take care to find out whether the proceedings during the pendency of which the suits are stayed, continue to be or not. Moreover the suits stayed under S. 10 C.P.C., are posted to a particular date they are automatically adjourned to a further date even without the cases being called in open court and dates being fixed by the Bench Clerk himself. That practice should also be put an end to immediately. Whenever a suit is stayed under S. 10 C.P.C., the duty of the court is to post it to a particular date and on that date ascertain from the lawyers or the parties as to whether the other proceeding during the pendency of which the suit has been stayed is still pending and the Presiding Officer shall record such information obtained by him. If the information is to the effect that the other proceeding is still pending, then the Presiding Officer may adjourn the matter to another date. If on the other hand, the information is that the other proceedings are not pending, then it is the duty of the Presiding Officer to post the suit to a short date for disposal.