RAMESH CHANDRA Vs. VIJAY PAL SINGH

JUDGEMENT

(1.) THIS revision under Section 115 Code of Criminal Procedure is directed against the order refusing to stay the suit under Section 10 Code of Civil Procedure. The allegation is that an earlier suit No. 1 of 1976 was filed in the Court of District Judge, Aligarh, between Tara Singh and others v. Bhagwat Das. The said suit was dismissed and the said matter is pending before the High Court in First Appeal. Another suit No. 3 of 1986 has been filed by Vijai Pal Singh and Anr. v. Ramesh Chandra and Ors. in the District Court, Aligarh, for -the same relief. The learned Counsel for the applicant submitted that both the suits relate to the same trust and the question raised is practically the same. It is submitted that the suit No. 3 of 1986 cannot be allowed to proceed in view of the provisions of Section 10 Code of Civil Procedure. The IIIrd Additional District Judge, Aligarh, rejected the application under Section 10 Code of Criminal Procedure on two grounds, firstly, that the causes of action in the present suit is different. It was held that the parties are also litigating title. Only similarity in the case is in respect of the same trust. The reason recorded by the court below distinguishing the distinct cause of action is that the present suit is on the basis of a will executed by the Manager of the Trust. The basis and cause of action and issues to be framed and decided in the subsequent suit is materially different. The learned Counsel for the Petitioner submitted that the court below has erroneously exercised jurisdiction in not staying the proceedings under Section 10 Code of Civil Procedure. He submitted that both the suits are practically for the same relief and in respect of the same Trust. It is urged that the first appeal arising out of the suit No. 1 of 1976 is pending before this Hon'ble Court and pendency of the first appeal amounts to pendency of the earlier suit of 1976 itself so as to get the subsequent suit stayed. He cited Mahanan Prasad Sah v. Prayag Sah, AIR 1975 Gau 40, to lay emphasis on the question that pendency of appeal is continuation of suit. Since the appeal in the High Court is pending, it will have the same effect of the pendency of the similar suit. There is not controversy or doubt about the proposition that the pendency of the appeal is nothing but continuation of the suit. The other authority cited by the learned Counsel for the applicant is : AIR 1920 All. 70. This authority lays down that the court would be justified in staying the proceedings in subsequent suit if the former suit raises the same plea, as raised in the subsequent suit. The legal position as submitted cannot be doubted and there is no reason to differ from the settled law. Another case cited is Dwarika Das Agrawal v. Har Prasad Agrawal : 1976 AWC 162. The learned Counsel pointed out that it is not necessary that the parties to the two suits should exactly be the same, they may not be identical, but if the relief 's are the same, the provision of Section 10 Code of Criminal Procedure would be attracted. In respect to this authority also, there is no dispute and I have no reason to differ from the said ruling. In the said ruling it was pointed out that the causes of action in the two suits were different and in such circumstances, it was held that the court was justified in refusing to stay the proceedings under Section 10 Code of Civil Procedure. The facts of the present case are exactly similar. The scope and object of Section 10 Code of Criminal Procedure is to stop the chances of contradictory and conflicting findings on one and same issue in two suits filed one after the other in two or different courts. If the issue is the same in both the courts and parties are same, the suit filed earlier in point of time be permitted to proceed and proceedings in the suit subsequently filed shall remain stayed. The finding on the issue between the same party/parties given in the judgment of suit filed earlier shall operate as res judicata for the later suit. Thus, the test is to see that the issue raised in the later suit if is same and between the same parties and whether final decision in the earlier suit would operates res judicata in the subsequent suit, the provisions of Section 10 Code of Criminal Procedure would be attracted. In the present case, the court below recorded a categorical finding that the causes of action in the present suit and in the earlier suit differs materially. The provision of Section 10 Code of Criminal Procedure also make it clear that the provisions of Section 10 Code of Criminal Procedure provides that the subsequent suit may be stayed in the circumstances when the parties are same or litigating under the same title and the issue in suit is directly and substantially the same as in the previously instituted suit in between the same parties. After examining the matter carefully I am of the view that necessary ingredients attracting provisions of Section 10 Code of Criminal Procedure are wanting in the present case. In view of the settled law I am of the view that the judgment of the court below is perfectly legal and just and there is no error of law or jurisdiction.

(2.) THE revision is dismissed.