AMBIKA SAHU Vs. SUMITRA SAHU

JUDGEMENT

(1.) The petitioner, plaintiff in T. S.No. 24/81 before the Subordinate Judge, Bargarh has preferred this revision against an order rejecting her application under Section 10, C.P.C. to stay the proceedings of the suit during the pendency of Second Appeals 266, 267, 268, 269 and 270 of 1985 pending in this Court. The facts leading to the revision are that the petitioner and the opposite party are sisters, being the daughters of one Biranchi Pradhan. The opposite party instituted T. S.Nos. 1,2, 4, 5 and 6 of 1980 against the petitioner and her alienees in the court of the Munsif, Bargarh for the relief of injunction restraining the defendants not to interfere with her possession of the disputed land on the pleading that the father Bianchi had executed a deed of gift in respect of the disputed property in her favour on 13-9-1978 and hence the petitioner had no right of transfer of any portion of the said property. The suits were contested by the, present Petitioner who filed written statements pleading that Biranchi had made separate allotment of properties in favour of the two daughters and had delivered possession of the, respectively allotted properties to the daughters in, 1965 and thereafter on 26-5-1971 had executed a deed of family settlement acknowledging the aforesaid previous partition of 1965. It was the further case of the petitioner in the suit that the opposite party taking advantage of the old age of Biranchi, took him to her house and exercising undue influence upon him got a deed of gift fraudulently executed on 13-91978 which was never acted upon and she had never come into possesion of the land on the basis of such gift. While the suits were pending, the petitioner also instituted T. S. No. 24 of 1981 before the Subordinate Judge, Bargarh against the opposite party for declaration of the gift deed as not a valid one and not affecting the right, title and interest of the petitioner. The suit was contested by the opposite party claiming the deed of gift to be valid one and the deed of family settlement is not binding. The petitioner filed an application under Section 10, C.P.C. in the second suit, T. S.No. 24/81, for stay of its hearing till the disposal of Title Appeals 19 to 23 of 1982 which appeals had been preferred by her against the decree passed in the five suits instituted by the opposite party. On agreement of both parties order was passed in the suit on 10-8-1983 staying further proceedings thereof. The order of stay passed in the suit continued till 27-7-1985 when the Subordinate Judge vacated the same on the ground that the Title Appeals had been dismissed on 17-7-1985. The petitioner filed the second appeals as referred to above against the dismissal of the appeals and also filed a application on 19-11-1985 under Section 10, C.P.C. before the Subordinate Judge to stay the further proceedings of the suit pending disposal of the appeals by this Court. The move was resisted by the defendant-opposite pay and the learned Subordinate Judge having rejected the prayer by his order dated 7-1-1986, the petitioner has moved this Court in revision.

(2.) The opposite party has not appeared in spite of notice.

(3.) A perusal of the order of the learned subordinate Judge shows the same to be completely misconceived. The reason assigned by the learned Subordinate Judge in rejecting the prayer of the petitioner for staying the suit was that he should obtain order of stay from this Court. A petition under Section 10, C.P.C. having been presented before the court below, it was obligatory on its part to consider whether the ingredients of the section applied to the facts of the case justifying an order of stay to be passed under that section. The order does not show such considerations to have been made. There is no denying the fact that in substance the subject-matter of both the suits is the same, namely, the validity of the deed of gift in favour of the opposite party and correctness of the plea of previous partition acknowledged by a family settlement in 1971 as pleaded by the petitioner. Section p, C.P.C. stipulates a mandate to the courts not to proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, and that the court in which the previous suit is pending is competent to grant the relief claimed. The provisions are intended to prevent multiplicity of suits. When application under Section 10, C.P.C. is presented, the court in which the suit is pending is to pass the orders and not the court in which the previous suit was pending. An appeal being continuation of the suit, pendency of the second appeal here would mean that the previous suits were suits were pending no order of stay can be passed in the second appeals staying further proceedings in the subsequent suit anMd to that extent the order passed by the learned court is in misconception of the provisions of law.