SURESH KUMAR AGARWALLA Vs. SANKAR LAL AGARWALLA

JUDGEMENT

(1.) THE instant revisional application under Article 227 of the Constitution of India is directed against the impugned order no. 56 dated 18th July, 2011 passed by the Ld. Civil Judge (Junior Division), 2nd Court, Jangipur, in O.S. no. 7 of 2009 along with other connected orders dated 14th July, 2010 and 24th August, 2010 passed by the same Ld. Court in the same suit. The case as made out by the petitioner/plaintiff is in short that the petitioner being plaintiff filed the suit being O.S. no. 7 of 2009 which is pending before Ld. Civil Judge (Junior Division), 2nd Court, Jangipur, for declaration and injunction over the suit property and has prayed in the said suit, inter alia, that for a declaration and of clauses of Bantan Nama dated 3rd August, 2008 made mutually by and between the parties cannot be ignored and denied by depriving the plaintiff/petitioner from the share of partnership business in the name and style M/s. Farakka Filling Centre Petrol Pump.

(2.) THE opposite party entered into appearance by filing written statement in the said suit and contested the same. The opposite party, long after filing of O.S. no. 7 of 2009, filed one suit being no. 60 of 2009 against the present petitioner/defendant which is pending before Ld. Civil Judge (Junior Division), 2nd Court, Jangipur. The prayer and the subject-matter of the suits are almost same relating to the title and interest over the business in the name and style M/s. Farakka Filling Centre Petrol Pump. Admittedly the suit being O.S. no. 60 of 2009 proceeded and advanced stage of hearing than the suit no. 7 of 2009 which was filed earlier. Ld. Court below passed an order dated 14th July, 2010 in O.S. no. 7 of 2009 fixing for analogous trial of both the suits in presence of Ld. Advocates for the parties. The defendant in the said suit on the day files a petition for stay of further proceeding. Copy served and no objection was raised.

(3.) THIS Court, upon the facts and circumstances of the case, has made out in the petition under Section 227 of the Constitution of India is to adjudicate as to whether the order impugned suffers from any illegality or impropriety. It appears from the submissions of Ld. Advocate for the petitioner as well as from the photocopy documents annexed herewith that both the suits by and between the parties are almost the same subject-matter with a relief of same nature. It is also admitted position that O.S. suit no. 7 of 2009 instituted earlier than the O.S. no. 60 of 2009. The petition under Section 151 C.P.C. filed by the present petitioner before the Ld. Court below with a prayer for proceeding of hearing of the O.S. no. 7 of 2009 keeping the O.S. no. 60 of 2009 be stayed is denied and rejected by the Ld. Court below simply on the ground that the order for analogous trial was not challenged before any Appellate Court. Ld. Court below did not consider the applicability of provision under Section 10 of C.P.C. The Section 10 of the C.P.C. runs as follows :