KULSUMUM NISAN Vs. MOHAMMAD FAROOQ

JUDGEMENT

(1.) THIS application in revision Is from an order of the Additional Civil Judge, Pilibhit allowing the plaintiff's application for amendment of the plaint by, impleading one Akhtar-ul-Zama as defendant No. 2 in the suit.

(2.) IT appears that suit No. 12 of 1057 was stayed under Section 10 C. P. C. by the Civil Judge during the pendency of F. A. No. 207 of 1957 in this Court inasmuch as the matter in issue in the present suit was also directly and substantially in issue between the parties in the said First Appeal. It was said that the Civil Judge had no jurisdiction to entertain an application for amendment by impleading defendant no. 2 as a party to the suit as the trial of the same had been stayed under Section 10 C. P. C. The learned Civil Judge repelled the contention and allowed the amendment.

(3.) REFERENCE was made by the learned counsel to Fakir Singh v. Secretary of State AIR 1928 Lahore 751(2). In that case it was held that once a court has made an order under Section 10 staying the proceedings in a suit it has no jurisdiction to fix further dates for the hearing of the suit unless moved to do so by either party. In that case in spite of the fact that the suit had been stayed the Civil Judge fixed a date for the hearing of the suit. On the date fixed the plaintiff failed to appear and the learned judge dismissed the suit. It was held by the Lahore High Court that the order was without jurisdiction. I am in respectful agreement with the above view for the dismissal of the suit necessarily involved the trial of the suit and an adjudication on matters in controversy between the parties. This, the court was not empowered to do in view of the stay of the proceedings under Section 10 C. P. C.