GAJENDRA NATH BISWAL Vs. NARMADA BISWAL & OTHERS

JUDGEMENT

(1.) In this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 14.10.2004 passed by the learned Addl. District Judge, FTC-2, Cuttack, in T.S. No.330 of 1999 whereby and whereunder the application filed by the petitioner under Section 10 CPC to stay the further proceeding of the suit till disposal of RFA No.13 of 2002 arising out of T.S No.550 of 1996 pending before this Court has been dismissed.

(2.) Opposite party no.1 as plaintiff instituted T.S. No.550 of 1996 in the court of learned Civil Judge (Senior Division), 1st Court, Cuttack impleading the petitioner and others as defendants praying, inter alia, for recovery of possession of suit schedule property along with the building standing thereon and for a direction to the defendant no.1 to furnish accounts in connection with the business and management of "Hotel Roxy" and "Roxy Hotel". The suit was dismissed. Thereafter, she filed RFA No.13 of 2002 before this Court, which is pending adjudication. During pendency of the aforesaid suit, opposite party no.1 instituted T.S. No.330 of 1999 impleading the petitioner and others as defendants in the same court with a prayer to set aside the compromise order and decree dated 14.10.1988 and 4.1.1991 respectively passed in T.S. No.677 of 1987 and for a declaration that the R.S.D. No.3546 dated 19.4.1980 is void and the suit schedule property as the property of the firm as per partnership deed dated 25.8.1976. The said suit was subsequently transferred to the court of learned Addl. District Judge, FTC-2, Cuttack. An alternative prayer has been made to pass a decree directing the defendants to execute the deed of transfer of suit schedule property in favour of the partnership firm constituted under the deed of partnership dated 25.8.1976. Pursuant to issuance of summons, the petitioner, who was defendant no.1, entered appearance and filed a comprehensive written statement denying the assertions made in the plaint.

(3.) While the matter stood thus, the petitioner filed an application under Section 10 CPC to stay further proceeding of T.S. No.330 of 1999 till disposal of RFA No.13 of 2002 pending before this Court. It is stated that the issues involved in T.S.No.330 of 1999 and T.S. No.550 of 1996 are directly and substantially the same inasmuch as the parties in both the suits are same. Opposite party no.1 filed an objection to the same. By order dated 14.10.2004, learned trial court came to hold that in both the suits, Plot No.1041 is common. Plot Nos.1041 and 1042 are vast areas. Out of the same, plaintiff purchased an area of Ac.0.02 dec. from Plot No.1041 and Ac.0.116 dec. from Plot No.1042. Thus the properties in both the suits are different. It was further held that the prayer in both the suits is different. Held so, the learned trial court rejected the petition.