RAM CHANDRA MIRDHA Vs. ARBIND

JUDGEMENT

(1.) This writ petition is filed under Article 227 of the Constitution of India wherein order dtd. 22/6/2017 passed in Title Suit No.163 of 2015 by Civil Judge, Senior Division-I, Deoghar, is under challenge whereby and whereunder, petition filed by the petitioner under Sec. 10 of the Code of Civil Procedure, has been held to be without any merit and accordingly rejected.

(2.) It is the case of the petitioner as per the pleadings made in this writ petition that the respondents/plaintiffs have instituted the case under Sec. 6 of the Specific Relief Act, 1963 for seeking relief, for restoration of possession of property but without disclosing the fact regarding institution of an earlier Suit being Title Suit No.105 of 2000 wherein the decree has been passed and the same is decreed partly and partly dismissed against which the first appeal has been filed by the petitioner which has been challenged before the second appellate court being Second Appeal No.197 of 2010 and therefore, for the same suit property, second appeal is pending, which will amount to continuation of the original suit and therefore, the present suit being Title Suit No.163 of 2015 is required to be stayed, in view of the provision of Sec. 10 of the Code of Civil Procedure but without considering that aspects of the matter the said petition has been rejected against which this writ petition has been filed.

(3.) While on the other hand learned counsel appearing for the respondents has vehemently opposed the ground urged by the petitioner by submitting that whatever stands has been taken by him before this Court, all the facts were never been brought before the trial court and therefore, the said order has been passed and since the said order has been questioned under Article 227 of the Constitution of India, therefore, this Court is required to test the legality and propriety of the order by going through its reason, therefore the petitioner may not be allowed to raise additional fact which were never brought before the trial court.