R.M. Lodha, J.
1. The appeal is admitted, Mr. Naveen Dhuan Advocate waives service for respondents No. 1 and 2. In view of the controversy that is involved in the appeal, we heard the counsel for the parties for final disposal of the appeal at this stage itself.
2. The present appellant is the original plaintiff. In the civil suit No. 57/1995 he prayed for a decree of specific performance of the agreement to sale date 22.3.1992 against the present respondents No. 1 and 2 (original defendant Nos. 1 and 2) and other incidental reliefs. For the sake of brevity and convenience, we shall refer the appellant, 'the plaintiff and the respondents No. 1 and 2, 'the defendants.'
3. Upon service of summons, the defendants made an application under Section 10 of the Code of Civil Procedure ('CPC' for short) for staying the trial in the aforesaid suit because in the suit (301/1991) filed by them before the Delhi High Court against the present appellant, the issue concerning the agreement dated 22.3.1992 was directly involved.
4. The trial Court by its order dated 12.2.1998 stayed the trial of the suit until the disposal of the previously instituted civil suit (301/1991) by the Delhi High Court. Thus, the trial in the suit (57/1995) remains stayed.
5. In the month of July, 2006, the plaintiff made two applications before the trial Court in Suit No. 57/1995. By one application made under Order 1 Rule 10 and Order 6 Rule 17 read with Section 151 CPC, the plaintiff prayed for impleadment of Ram Lal Choudhary and Smt. Hans Kaur who were sold part of the property in the month of February, 2006 and the consequential amendment, particularly, the cancellation of the two sale-deeds. By another application made under Order 39 Rule 1 and 2 read with Section 151 CPC, the plaintiff prayed for an order of temporary injunction restraining the defendants from disposing of or transferring the subject property in any manner what-so-ever during the pendency of the suit.
6. The defendants opposed these applications by setting up the stand that the proceedings in the suit having been stayed, the applications could not be entertained.
7. The trial Court by its order dated 29.8.2006 deferred the consideration of these applications until the disposal of the suit (301/1991) by Delhi High Court since the trial in the suit remained stayed.
8. The plaintiff challenged the legality and correctness of the order dated 29.8.2006 by filing writ petition before this Court.
9. The Single Judge by his order dated 8.12.2006 dismissed the writ petition in limine thus:
After having carefully gone through the material on record, apart from been purely a contractual matter, since disputed questions of fact and law are involved, no interference is called for by this Court under writ jurisdiction.
The writ petition is dismissed accordingly as having no merits.
10. The plaintiff has taken exception to the order of the Single Judge dated 8th December, 2006 in this special appeal.
11. The solitary question that needs our advertence is whether as a result of the order dated 12.2.1998 staying the trial in Civil Suit No. 57/1995, the trial court was justified in deferring the consideration of the applicants made by the plaintiff under Order 1 Rule 10 and Order 6 Rule 17 CPC and another application for grant of temporary injunction under Order 39 Rule 1 and 2 CPC.
12. It has been the consistent judicial view that the word 'trial' in Section 10 of the Code of Civil Procedure is not used in its widest sense. The provision being in the nature of rule of procedure, it does not effect the jurisdiction of the court to entertain and deal with interlocutory matters in the suit. This aspect was under consideration directly before the Apex Court in the case of Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd. : [1998]3SCR187 . This is what the Supreme Court said with regard to the word 'trial' in Section 10 and the jurisdiction of the court in dealing with the interlocutory applications though the trial in the suit has been stayed:
8. Therefore, the word 'trial' in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition 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.' The object of the prohibition contained in Section 10 is to prevent the Courts of concurrent jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the Court to entertain and deal with the later suit nor does it create any substantive right in the matters. It is not a bar to the institution of a suit. It has been construed by the Court as not a bar of the passing of interlocutory orders such as an order for consolidation of the later suit with the earlier suit, or appointment of a Receiver or an injunction or attachment before judgment. The course of action which the Court has to follow according to Section 10 is not to proceed with the 'trial' of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. In view of the object and nature of the provision and the fairly settled legal position with respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section 10 is not used in its widest sense.
13. In a brief order passed in the case of Amita Kaushish and Ors. v. Sanjay Kaushish and Ors. JIT 1995(8) SC 50, the Supreme Court observed thus:
2. The impugned order is only a direction to list the appeal FAO (OS) No. 221/91 filed by the appellants for disposal pending in the High Court. The Division Bench by its order dated July 12, 1994 directed to list the appeal for final hearing on October 17, 1994 within first five cases. It would appear that there is long drawn litigation inter se parties. Since the time fixed by the High Court is already over and the appeal is yet to be disposed of, we request the High Court to appropriately fix an early date for disposal, preferably before the end of this year.
2. The learned Counsel for the respondents stated that on account of the stay of the suit, his clients are prevented to take any direction or order by way of interlocutory application. The stay of the trial of the suit does not preclude the respondents to seek such appropriate interlocutory reliefs as may be available and warranted in the facts and circumstances.
14. The Supreme Court, thus, has held that the stay of trial of the suit did not preclude the court from consideration of interlocutory reliefs.
15. We may also notice few decisions of the other High Courts as well.
16. In the case of Baburao Vithalrao Sulunke v. Kandarappa Prasappa Dabbannavar and Anr. AIR 1974 Mysore 63, the Single Judge of the Mysore High Court held that despite the order under Section 10 of the Code of Civil Procedure, the court has jurisdiction to make interlocutory orders. In paragraph 2 of the report, the Single Judge of Mysore High Court said thus:
It seems to me that this order is clearly unsustainable. This Court in C.R.P. No. 2745 of 1972 decided on 22.2.1973 has laid down that a Court which is seized of a suit which has been stayed pursuant to the provisions of Section 10 C.P.C. had nevertheless jurisdiction to make interlocutory orders, if relief in that behalf is claimed by any of the parties. Section 10 C.P.C. also seems to refer to the stay of trial of a suit and not other proceedings of an interlocutory character.
17. The Single Judge of the Delhi High Court in the case of Escorts Construction Equipment Ltd. and Ors. v. Action Construction Equipment Pvt. Ltd. and Anr. AIR 1999 Delhi 73 with regard to the power of the Court in issuing interlocutory order where the trial of the suit has been stayed under Section 10 held thus:
As regards the disposal of the plaintiffs application under Order 39, Rules 1 and 2, CPC, learned Counsel for the defendants has fairly conceded that an order staying a suit under Section 10 CPC does not prevent a Court from making interlocutory orders. To the same effect is the law laid down by the Nagpur High Court in Goverdhan Sindya v. Hemraj Singh Ratansingh AIR 1944 Nag. 335. I am, therefore, of the opinion that this Court has jurisdiction to pass any interlocutory order after staying trial of this Suit under Section 10 CPC.
18. In Century Proteins Ltd. v. Sham Sunder (Haryana) Industries Pvt. Ltd. , after relying upon the decision of Kerala High Court, : AIR1995Ker57 held that the application for ad-interim injunction can be decided by the Court despite the fact that the trial of suit was stayed. In paragraphs 7 and 8, the Single Judge of Punjab & Haryana High Court held thus:
The Kerala High Court had placed reliance on V.R. Balakrishanan Nadar's case (supra) in which it was held that aninterlocutory order in the nature of issue of injunction or appointment of a receiver,' or an order of attachment before judgment cannot be regarded as a mailer affecting the trial of the suit and, thus, cannot be stayed under Section 10 C.P.C. In the said authority, reliance had been placed on the law laid down by the Mysore High Court in Baburao Vithalrao Sulunke's case (supra). In the said authority, it was held by the Mysore High Court that Section 10 C.P.C. seems to refer to the stay of trial of a suit and not other proceedings of an interlocutory character. In the said case the trial Court had declined to decide the application under Order 38 Rule 5 C.P.C. for the grant of attachment before judgment on the ground that the suit had been stayed pursuant to the provisions of Section 10 C.P.C. The Mysore High Court allowed the revision petition, set aside the order of the trial Court and directed the trial Court to decide the matter in accordance with law. In Senaji Kapurchand's case (supra) it was held by a Division Bench of the Bombay High Court that an order staying the suit under Section 10, C.P.C. does not prevent the Court from making interlocutory orders such as orders for a Receiver or an injunction or an order for attachment before judgment.
8. In view of the law laid down by various High Courts in the above mentioned authorities, in my opinion, the learned District Judge was perfectly justified in holding that he was competent to deal with the application under Order 39 Rules 1 and 2 C.P.C. in spite of the fact that the trial of the suit had been stayed under Section 10 C.P.C. No authority to the contrary had been cited before me by the learned Counsel for the petitioner.
19. In long line of cases on the point, the Allahabad High Court has taken the view that an order for amendment of the plaint by adding a defendant in the suit that has been stayed under Section 10 is well within the jurisdiction of the Court. The Allahabad High Court in this regard considered the matter thus:
3. In this Court it was strenuously urged that Section 10 was a complete bar to the making of an interlocutory order in this suit which had been stayed under that Section. Strong reliance was placed on the words 'no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially at issue in a previous instituted suit between the same parties' and it was maintained that the trial of the suit commenced with the filing of the plaint and any order passed by the court after the staying of the suit was without jurisdiction. In my opinion the argument is without substance and cannot be accepted for a moment. The object underlying the provisions of Section 10 C.P.C. is to prevent simultaneous trial of two suits in which the matter in issue between the parties is directly and substantially the same. An interlocutory order in the nature of issue of injunction, or appointment of a receiver, or an order of attachment before judgment cannot be regarded as a matter affecting the trial of the suit. It seems tome that the question as to whether a party should or should not be impleaded does not encroach on the merits of the controversy between the parties. It is a matter of a formal nature and cannot in any way determine their respective rights. I am, therefore, of the opinion that an amendment of the plaint by adding a defendant to the suit is not a matter relating to the trial of the suit. Such an order cannot, therefore, be taken to be a step in the trial of the suit.
7. I am of the view that an amendment impleading a party to the suit does not in any way determine rights or liabilities of the parties to the suit, nor is it a matter relating to the trial of the suit. Consequently, the order of the Civil Judge impleading defendant No. 2 as a party to the suit did not amount to a trial of the suit and was well within the jurisdiction of the Court.
20. The legal position, thus, appears to be well crystalised that in spite of the trial of the suit having been stayed under Section 10 of the Code of Civil Procedure, the consideration of the applications for the interlocutory reliefs, such as grant of injunction, appointment of receiver, attachment before judgment, impleadment of a party, amendment in the plaint etc., may be considered and order passed because such an order cannot be taken to be a step in the trial of the suit.
21. Seen thus, it is apparent that the trial Court failed to exercise the jurisdiction vested in it in deferring the consideration of the two applications made by the plaintiff. We find no justification in the order of the trial Court in deferring the consideration of these two applications until the decision of the civil suit (301/1991) by Delhi High Court.
22. The Single Judge seems to have missed the real point raised in the writ petition. He dismissed the writ petition by observing that apart from being purely a contractual matter since disputed questions of fact and law are involved, no interference was called for. We fail to appreciate the relevance of these observations. The disputed questions of fact and law obviously shall be determined by the trial Court in the suit as and when such occasion arises. The question before the Single Judge was the correctness of the order of the trial Court whereby he deferred the consideration of the two applications because of the trial of the suit stood deferred but the said aspect was overlooked.
23. As a result of our fore-going discussion, we are satisfied that the order of the trial Court dated 29.8.2006 cannot be sustained.
24. Consequently, we allow this appeal and set aside the order of the Single Judge dated 8.12.2006 as well as the order dated 29.8.2006 passed by the Additional District Judge (Fast Track) Kishangarhwas. He is directed to hear and decide the two applications made under Order 1 Rule 10 and Order 6 Rule 17 read with Section 151 CPC and under Order 39 Rules 1 and 2 read with Section 151 CPC in Civil Suit No. 90/2004 (Old No. 57/1995) in accordance with law.
25. The parties shall bear their own costs.
The ad-interim order passed in the appeal stands discharged with liberty to the plaintiff to press for such relief before the trial Court.