Judgment:
B.P. Singh, J.
1. This revision has been preferred by the petitioner-Jagdish Prasad who is the plaintiff in Probate Case No. 119 of 1992 in which he has prayed for the probate of a registered Will executed by Smt. Naulakho Devi widow of Shyam Lal Sari on 22-5-1974. The petitioner had filed an application under Section 151, C.P.C. before the Court of Sub-Judge IVth, Patna in Title Suit No. 480 of 1984 praying that the said suit be stayed till the disposal of Probate Case No. 119 of 1992. The petitioner is defendant No. 1 in title suit No. 480 of 1984. The Probate case has been filed by him as the executor of the Will and the father of one of the legatees. The learned subordinate Judge by his impugned order dated 16-12-1992 refused to stay Title Suit No. 480 of 1984 which is a suit for partition, but with a direction that the petitioner may renew his prayer after the preliminary decree, at the time of carying out separate takhtas, if by that time the probate case is not decided.
2. A few relevant facts may be noticed. It is not disputed that Ram Gulam Sah was the common ancestor of the parties. Ram Gulam Sah died leaving behind two sons, namely, Narain Sah and Shyamlal Sah. Narain Sah died leaving behind three sons, namely, Ram Govind Sah, 'Sheo Govind Sah and Jai Govind Sah. On the other hand, Shyam Lal Sah died leaving behind a widow Naulakho who died in the year 1978 but left behind a registered Will dated 22-5-1974 bequeathing her half share in favour of two of the defendants only.
Ram Govind Sah died leaving behind his son Jagdish Prasad the petitioner, herein Chandradeep, Rajendra and Surendra.
3. Smt. Kamala Gupta widow of Chandradeep, and her son Rajesh Kumar (opposite parties Nos. 1 and 2 in this petition filed a Title Suit No. 480 of 1984 in the Court of Sub-Judge IV, Patna claiming 1/8th share in the properties left behind by late Ram Gulam Sah. Her case was that since Narain Sah and Shyamlal Sah died in state of jointness, the plaintiffs were entitled to l/8th share in the properties left behind by Ram Gulam Sah. This suit was filed in the year 1984 in which the petitioner and other opposite parties have been arrayed as defendants.
4. In the year 1992, Jagdish Prasad, the petitioner herein and defendant No. 1 in Title Suit No. 480 of 1984 filed Probate case No. 119 of 1992 before the same Court praying for the probate of registered Will of Naulakho Kuer widow of Shyamlal Sah executed on 22-5-1974. in favour of his son and another defendant and appointing him as the executor of the Will.
5. It was stated at the bar that the 3rd son of Narain Sah, Jai Govind Sah also died leaving behind his widow Domani Devi. The aforesaid Domani Devi also died leaving behind a Will in favour of Smt. Sona Devi wife of Rajendra Prasad, defendant No. 8 in Title Suit No. 480 of 1984 and letters of administration have been asked for in L.A.O. No. 88 of 1987. In this petition, I am not concerned with that proceeding as that was not subject-matter of the application filed by the petitioner under Section 151, C.P.C.
6. As noticed earlier the petitioner/defendant No. 1 in Title Suit No. 480 of 1984 filed an application under Section 151, C.P.C. in the said suit praying that the suit be stayed till the disposal of Probate Case No. 119 of 1992. The said prayer has been refused by the trial Court subject to the directions made by it.
7. The sole question which arises for consideration in this revision petition is whether the trial Court was justified in refusing to stay Title Suit No. 480 of 1984 till the disposal of Probate Case No. 119 of 1992. It appears that the application under Section 151, C.P.C. was filed soon after the filing of the probate case and was disposed of by the impugned order on 16-11-1992. The civil revision petition was admitted for hearing by this Court, but prayer for stay was refused as it was observed that the proceeding in the probate case commenced in the year 1992 whereas the suit which was sought to be stayed was instituted as early as in the year 1984.
8. On a plain reading of Section 10 of the Code of Civil Procedure, it will appear that the section provides for staying of a subsequent suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The clear language of the section does not justify the staying of an earlier suit pending disposal of the subsequent suit. The section is aimed at avoiding multiplicity of suit in respect of the same subject-matter between the same parties. However, since authorities have been cited before me by the contesting parties, it is necessary for me to consider those authorities. Some of the opposite parties have supported the petitioner including opposite parties No. 11, 12 and 13.
9. In Beni Singh v. Indrajit Singh and others (Civil Revision No. 261 of 1962 disposed of by a learned single Judge of this Court on 25-4-1962) reported in 1962 BLJR (SOC) 60 (2) it was held that though in such a case Section 10, C.P.C. had no application, the stay of hearing of the suit could be granted under Section 151 of the Code of Civil Procedure. The Court, therefore, stayed the hearing of the partition suit till the disposal of the probate case holding that it was essential for the petitioner with a view to establish his defence to obtain a probate of the Will, and therefore, the stay of the partition suit was essential for the ends of justice.
10. Learned counsel for the contesting opposite parties submitted that the principle laid down by the learned Judge in the aforesaid civil revision petition cannot be held to be good law in view of the decision of the Supreme Court reported in AIR 1962 SC 527 (Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal). While laying down the principle regarding applicability of Sections 10 and 151 of the Code of Civil Procedure, the Court observed that where a party claims interference of the Court to stop another action between the same parties, it lies upon him to show to the Court that the multiplicity of action is vexatious, and the whole burden of proof ties upon him. He does not satisfy that burden of proof by merely showing that there is a multiplicity of actions, he must go further. However, it was held that the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. It was thereafter held that the provisions of Section 10 are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances.
When there is a special provision in the Code for dealing with the contingency of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified. The provisions of Section 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. Relying upon this authority, it was submitted on behalf of the con-testing opposite parties that the power to stay a suit may be exercised strictly in accordance with Section 10 of the Code of Civil Procedure and it mustbe deemed to be not exercisable in any other manner or for purposes other than those set out in Section 10, C.P.C.
11. Counsel for the contesting opposite parties has also relied upon a Division Bench decision of the Calcutta High Court reported in AIR 1975 Cal 411 (Shaw Wallace and Co. Ltd. v. Bholanath Mandanlal Sherawala. The learned Judges held that one of the most essential conditions of Section 10 is that the matter in issue in the later suit which is sought to be stayed must be directly and substantially in issue in the earlier suit which is pending in the same or in any other Court of concurrent jurisdiction. A mere identity of some of the issues in both the suits is not sufficient to attract the section. Reliance was placed on the statement of law by Sir Ashuthos Mookerjee in Bepin Behari v. Jogendra Chandra, AIR 1917 Cal 248, wherein it was observed (Para 12 of AIR);
'What then is the meaning of the expression 'the matter in issue.' The defendants invite us to hold that the expression is equivalent to 'any of the questions in issue'. The obvious answer is that if that had been the intention of the framers of the section appropriate words might have been used to bring out such sense. We are of opinion that the expression 'the matter is issue' has reference to the entire subject in controversy between the parties. The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously try ing two parallel suits in respect of the same matter in issue.'
12. Learned counsel for the contesting opposite parties submitted that in the suits with which we are concerned in the instant application, only some of issues may be involved in both, and not 'the entire subject in controversy between the parties. He submitted that in the probate case the only issue to be decided by the Court is whether the Will was duly executed. Consequent upon the finding in such a suit, the legatees under the Will may set up a defence in the partition suit claiming a larger share. That, however, does not mean that the entire subject in controversy between the panics is a subject-matter of both the-suits. It was also submitted that in the Calcutta case what was sought to be stayed was a subsequent suit and not the earlier suit. That is not the case here.
13. In AIR 1976 Goa 48 (Conceicao Filipe Sequeira v. Paulo Fra'ncisco Sequeira, the learned Addl. Judicial Commissioner following the law as laid down by the Supreme Court in Manoharlal (AIR 1962 SC 527) (supra) held that the impugned order granting stay of the earlier suit till the decision of the subsequent suit in exercise of power under Section 151 of the Code of Civil Procedure was not justified and accordingly allowed the petition setting aside the impugned order.
14. An unreported decision of a Division Bench of this Court has been brought to my notice. In Civil Revision No. 200 of 1988, a Division Bench of this Court by its order dated 22-4-1992 disposed of the civil revision petition in which the trial Court had dismissed the prayer for staying proceeding of the probate case till the disposal of the partition suit. In this case as well Title Suit No. 442 of 1985 for partition was filed earlier than the probate case which was filed in the year 1987. From a perusal of the order of this Court, it appears that the Court did not decide the revision application on its merit and proceeded to pass appropriate directions for the disposal of the two suits. The order of this Court does not lay down any principle of law which may operate as a binding precedent. All that the Court directed was that the probate case should be disposed of first and so long the probate case was not disposed of, the proceeding of the partition suit shall remain pending. After disposal of the probate case, the parties should inform the concerned Court regarding the decision of the Probate case so that hearing of the partition suit may be taken up. As earlier noticed, their Lordships did not dispose of the civil revision petition on merit and, dierefore, did not lay down any principle of law which can operate as a binding precedent.
15. From the authorities noticed above and particularly the decision of the Supreme Court in Manoharlal (AIR 1962 SC 527) (supra), I must hold that the power to stay a suit under Section 10 of the Code of Civil Procedure can be exercised only in accordance with the said provision. If the conditions of Section 10 are not fulfilled and/or if the Court comes to the conclusion that it would not be justified in exercising its jurisdiction under Section 10 of the Code of Civil Procedure, a suit cannot be stayed by recourse to Section 151 of the Code of Civil Procedure. In view of the existence of special provision in the Code for dealing with a particular contingency, recourse to the inherent powers under Section 151, C.P.C. is not justified. Such a case must be decided in accordance with the special provision and not by recourse to inherent powers under Section 151 of the Code of Civil Procedure.
16. In the instant case, it is apparent that Section 10, C.P.C. cannot be invoked by the petitioner to stay an earlier suit. He could not, therefore, be granted any relief under Section 10, C.P.C. the trial Court has, however, tried to balance equities by giving certain directions. I am of the considered opinion that no interference by this Court is called for. This Civil Revision Petition is, therefore dismissed without any order as to cost.
Ashish N. Trivedi, J.
17. I agree.