Jagdhar and Another Vs. Civil Judge (Junior Division), Banda and Another

Jagdhar and Another vs Civil Judge (Junior Division), Banda and Another

Type Court Judgment Court Allahabad Decided Aug 20, 1999

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Citation: sooperkanoon.com/485071
Court: Allahabad High Court
Judge: D.K. Seth, J.
Decided On: Aug 20, 1999
Case Number: C.M.W.P. No. 34985 of 1999
Subject: Civil;Property

Case Summary

AI-generated summary - not the official court judgment text.

Civil - early hearing of application - Section 10 and Order 39 Rules1, 2 and 4 and Order 43 Rule 1(r)of Code of Civil Procedure, 1908 - petition sought to quash subsequent suit as parties and suit property involved is same in earlier suit - before coming to this Court remedy under Section 10 exhausted - this Court c...

Key legal issue: Civil;Property
Acts & sections: Code of Civil Procedure (CPC), 1908 - Sections 10 - Order 39, Rules 1, 2 and 4 - Order 43, Rule 1; Constitution of India - Article 227

Parties & Advocates

Appellant / Petitioner

Jagdhar and Another

Advocate Punit Kumar Gupta, Adv.

Respondent

Civil Judge (Junior Division), Banda and Another

Advocate S.C.

Legal References

Acts: Code of Civil Procedure (CPC), 1908 - Sections 10 - Order 39, Rules 1, 2 and 4 - Order 43, Rule 1; Constitution of India - Article 227
Reported In: 1999(4)AWC2967

Excerpt

civil - early hearing of application - section 10 and order 39 rules1, 2 and 4 and order 43 rule 1(r)of code of civil procedure, 1908 - petition sought to quash subsequent suit as parties and suit property involved is same in earlier suit - before coming to this court remedy under section 10 exhausted - this court cannot exercise its power under section 10 - against order for temporary injunction an appeal is maintainable before district judge - held, case not fit for quashing suit but petitioner can apply for early hearing of application under section 10 and as well under order 43 rule 1(r). - - 308 of 1996 for injunction, in which an order of injunction was sought for by the plaintiff opposite parties, which was contested upto the appellate court unsuccessfully. such power is exercised by the high court in exceptional circumstances where the process of court appears to have been glaringly abused. 11. in this case, no such exceptional circumstances exist. in the circumstances, it will be open to the petitioner to apply for early hearing of the application under section 10 of the code as well as the application under order xxxix, rule 4 of the code before the learned court below......and the decision in the case of deva ram and another v. ishwar chand and another, (1997) (1) arc 286, in support of his contention for quashing of the plaint.6. there is no doubt about the proposition laid down in the said decisions. but in the facts and circumstances of the present case, it is too early to attract the ratiodecided in the said cases. if the suit is between the same parties involving the same property, in that event proceedings of the subsequent suit can be stayed by reason of resorting to section 10 of the code of civil procedure. it is submitted by the learned counsel for the petitioner that an application under section 10 of the code has been filed and is pending in the learned trial court. in such circumstances, the petitioner has not exhausted the remedy under section 10 of the code before coming to this court.7. mr. gupta then contends that despite earnest effort on the part of the petitioner, the application under section 10 of the code is not being disposed of. at the same time, the application under order xxxix, rule 4 of the code is also not being taken up for decision.8. in such circumstances, the question of quashing of the plaint does not arise.9. so far the order dated 31st march. 1999 is concerned that was an order under order xxxix, rules 1 and 2 of the code by the learned civil judge (junior division), against which an appeal is maintainable under order xliii. rule 1 (r) of the code before the district judge. therefore, this application is not maintainable before this court against the order dated 31st march, 1999 passed by the learned civil judge (junior division), banda, in suit no. 140 of 1999.10. so far as the question of quashing of the plaint is concerned, it appears to be misconceived. inasmuch as in such case so long the earlier suit is not decided, the remedy being provided in section 10 of the code, the high court will not exercise its power to quash the plaint. such power is exercised by the high court in exceptional.....

Full Judgment

D. K. Seth, J.

1. Leave is granted to convert the petition into one under Article 227 of the Constitution of India.

2. The petitioners allege that the opposite party had filed a Civil Suit No. 308 of 1996 for injunction, in which an order of injunction was sought for by the plaintiff opposite parties, which was contested upto the appellate court unsuccessfully. Thereafter the plaintiff opposite party had filed Original Suit No. 140 of 1999 in which he had obtained an order dated 31st March. 1999 granting injunction against the petitioners. It is this order which has been challenged in this petition together with a prayer for quashing of the plaint in Original Suit No. 140 of 1999.

3. Mr. P. K. Gupta, learned counsel for the petitioners contends that the parties and the suit property in Suit No. 140 of 1999 are the same as is involved in Suit No. 308 of 1996. Therefore, plaint of the subsequent suit is liable to be quashed.

4. I have heard Mr. Gupta at length.

5. Mr. Gupta had relied on a decision in the case of Thakur Matthili Ramanji Maharaj and another v. District Judge, Jhansi and another. 1996(3) AWC 2.241, and the decision in the case of Deva Ram and another v. Ishwar Chand and another, (1997) (1) ARC 286, in support of his contention for quashing of the plaint.

6. There is no doubt about the proposition laid down in the said decisions. But in the facts and circumstances of the present case, it is too early to attract the ratiodecided in the said cases. If the suit is between the same parties involving the same property, in that event proceedings of the subsequent suit can be stayed by reason of resorting to Section 10 of the Code of Civil Procedure. It is submitted by the learned counsel for the petitioner that an application under Section 10 of the Code has been filed and is pending in the learned trial court. In such circumstances, the petitioner has not exhausted the remedy under Section 10 of the Code before coming to this Court.

7. Mr. Gupta then contends that despite earnest effort on the part of the petitioner, the application under Section 10 of the Code is not being disposed of. At the same time, the application under Order XXXIX, Rule 4 of the Code is also not being taken up for decision.

8. In such circumstances, the question of quashing of the plaint does not arise.

9. So far the order dated 31st March. 1999 is concerned that was an order under Order XXXIX, Rules 1 and 2 of the Code by the learned Civil Judge (Junior Division), against which an appeal is maintainable under Order XLIII. Rule 1 (r) of the Code before the District Judge. Therefore, this application is not maintainable before this Court against the order dated 31st March, 1999 passed by the learned Civil Judge (Junior Division), Banda, in Suit No. 140 of 1999.

10. So far as the question of quashing of the plaint is concerned, it appears to be misconceived. Inasmuch as in such case so long the earlier suit is not decided, the remedy being provided in Section 10 of the Code, the High Court will not exercise its power to quash the plaint. Such power is exercised by the High Court in exceptional circumstances where the process of Court appears to have been glaringly abused. 'In case the earlier suit is decided, the same can be resisted under Section 11 of the Code. These are matters which require exhaustive examination on facts on the basis of the materials produced before the Court. This Courtcannot undertake such exercise in a writ proceeding. It would be prejudging the issues.

11. In this case, no such exceptional circumstances exist. Therefore, this is not a case fit for quashing the plaint. In the circumstances, it will be open to the petitioner to apply for early hearing of the application under Section 10 of the Code as well as the application under Order XXXIX, Rule 4 of the Code before the learned Court below. If any such application is made, it is expected that the same shall be decided as early as possible.

12. The writ petition, therefore,fails and is accordingly dismissed. Nocost.

Same Court & Year Allahabad · 1999 Same Parties Jagdhar and Another vs Civil Judge (Junior Division), Banda a... Same Subject Civil;Property Same Judge D.K. Seth, J. Acts & Sections Code of Civil Procedure (CPC), 1908 - Sections 10 - Order 39,...

Civil;Property