ISHWAR DEVI Vs. SHAM SUNDER

JUDGEMENT

(1.) THIS petition has been directed against the order dated 22nd April, 1997 passed by Civil Judge (Senior Division) Karnal. By this order, the learned Civil Judge has dismissed the application filed on behalf of co-plaintiff Ishwar Devi (being LR of plaintiff Savitri Devi) Under Section 151 C. P. C. for stay of the earlier suit filed on 29th Sept. 1995, in which the plaintiffs were respondent Sham Sunder and deceased Savitri Devi. Notice of this petition was issued to the respondents.

(2.) MR . Gupta, learned counsel appearing on behalf of the petitioner has drawn my attention to Order 20, Rule 18, C. P. C. and submits that since the case relates to the partition of the immovable property and the partition of the house in question cannot be conveniently made without further inquiry the previous suit should be stayed. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in Shankar Balwant Lokhande (dead by L. Rs.) v. Chandra Kant Shankar Lokhande, 1995 (2) R. R. R. 304. He further submits that in any case, keeping in view the facts and circumstances of the case, both the suits should be consolidated. In support of this submission, he has placed reliance on a decision of this Court in Kamla Wati v. Kharaiti Lal, 1992 (1) R. R. R. 564.

(3.) AFTER hearing the learned counsel for the parties and having perused the impugned order, I do not find any infirmity or illegality in the order passed by the learned trial Court. It is not disputed that the application which has been dismissed by the learned trial Court was filed by the petitioner for stay of the earlier suit. Though no provision of law has been mentioned in the application but the only provision provided in the Civil Procedure Code is Section 10 for stay of the suit. It is not disputed that the two of the conditions mentioned in Section 10 C. P. C. i. e. the parties of the two suits are not the same and secondly, the prayer is for stay of the earlier suit and not of the later suit, do not exist in the present case. The application filed by the petitioner for stay of the previous suit is, therefore, liable to be dismissed on this short ground. Even otherwise, the learned trial Court has given valid reasons for declining the application of the petitioner for stay of the previous suit inasmuch as the petitioner is concerned with regard to the share of the deceased in the suit property. The decision of the Supreme Court in the case of Shankar Balwant Lokhande (supra) relied upon by the learned counsel for the petitioner is not applicable to the facts of the present case. In the present case, it is yet to be adjudicated by the learned trial Court as to whether the suit property can be partitioned conveniently or not.