M.RAMASAMY Vs. PAPPATHI

JUDGEMENT

(1.) The plaintiff in O.S. No. 380 of 1998, on the file of the Additional District Munsif Court, Namakkal, is the revision petitioner herein. He filed the suit for partition, stating that the properties are the ancestral properties of the plaintiff and the defendants and therefore, he is entitled to 48/210 share. In the plaint, the plaintiff has challenged the settlement deed, dated 25.10.1973, executed by his father in favour of one Mani @ Balasubramaniyan, son of defendants 5 and 6, contending that the settlement deed, is not a valid one, as the father has no right to execute the settlement deed in respect of the ancestral properties. When the trial has commenced, the revision petitioner/plaintiff filed an application under Section 10 C.P.C., to stay the proceedings in O.S. No. 380 of 1998, till the disposal of the Second Appeal filed by him against the judgment and decree, passed in O.S. No. 436 of 2000, on the file of the District Munsif, Namakkal. The said application was dismissed. Aggrieved by the same, the present Civil Revision Petition is filed. The Learned Counsel appearing for the revision petitioner submitted that O.S. No. 436 of 2000, was filed by one Mr. Rajan, claiming to be purchaser of the suit properties from the defendants 2 and 3, who are the defendants 2 and 3, in O.S. No. 380 of 1998. In O.S. No. 436 of 2000, it is alleged that one Mr. Muthusamy Gounder, executed a settlement deed in favour of Mani @ Balasubramaniyan, son of defendants 2 and 3. After the death of the said Mani @ Balasubramaniyan, the third defendant, the mother of the said minor-Mani @ Balasubramaniyan, succeeded to the estate and sold the property to the plaintiff-Rajan. Therefore, he became the absolute owner of the property and filed the suit for declaration and that suit was dismissed. The appeal challenging the said decree, viz., A.S. No. 23 of 2002, on the file of the Subordinate Court, Namakkal, was allowed and O.S. No. 436 of 2000, was decreed by the First Appellate Court. Thereafter, the revision petitioner preferred Second Appeal before this Court with a delay and therefore, he filed M.P. No. 1 of 2012, in S.A. Sr. No. 113698 of 2011, to condone the delay and the same is pending. Thus, till the disposal of the Second Appeal, the proceedings in O.S. No. 380 of 1998, has to be stayed. The Court below, without properly appreciating the fact that the issue involved in both the suits is common, viz., Whether the settlement deed, dated 25.10.1973, executed by Muthusamy Gounder, in favour of Mani @ Balasubramaniyan is valid one or not? and the fact that the parties are also one and the same, and hence, O.S. No. 380 of 1998, has to be stayed, otherwise, that will lead to conflict of judgments, dismissed the application.

(2.) It is submitted by the Learned Counsel for the respondent that under Section 10 C.P.C., only latter suit has to be stayed and the earlier one cannot be stayed. Admittedly, O.S. No. 380 of 1998, is the earlier suit and O.S. No. 436 of 2000, is the latter suit. Therefore by virtue of Section 10 C.P.C., earlier suit cannot be stayed till the disposal of the latter suit. The Learned Counsel, further submitted that in the partition suit, the rights of the parties will be decided finally and therefore, the scope of enquiry in the partition suit is elaborate than the scope of enquiry in the declaration suit, viz., the suit in O.S. No. 436 of 2000. Hence, there is no need to stay the trial in O.S. No. 380 of 1998. The Learned Counsel, further submitted that the revision petitioner has filed the application, at the point of time, when the case was posted for defendants' evidence and no attempt was made by him to stay the earlier proceedings. Moreover, the Second Appeal filed by him has not yet been numbered, and therefore, at this stage of the matter, the proceedings in O.S. No. 380 of 1998, cannot be stayed.

(3.) The Learned Counsel relied upon the judgments reported in i) in the matter of [Jai Hind Iron Mart Vs. Tulsirarr Bhagwandas, 1953 AIR(Bom) 117] ii) in the matter of [M/s. Arjies Aluminim Udyog Vs. Sudhir Batra, New Delhi, 1997 AIR(Del) 232] and iii) in the matter of [National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, 2005 AIR(SC) 242] in support of his contention that Section 10 C.P.C., cannot be applied to the facts of the case on hand. Section 151 also cannot be invoked and even for invoking Section 151, the Court must satisfy that the earlier suit is an abuse of process of the Court or has been filed mala fide or to forestall the suit, which the defendant would have filed in another Court. The Learned Counsel, therefore, submitted that in the present case, none of these have been stated in the affidavit filed in support of the application and hence, this earlier suit cannot be stayed.