T. Chatterjee, J.
1. This revisional application is directed against an order being Order No. 31 dated 10th September, 1997 passed by the Assistant District Judge. Burdwan in Money Suit No. 33 of 1995. By the impugned order, the Asst. District Judge. Burdwan rejected the application filed by the petitioners under section 151 of the Code of Civil Procedure praying for an order of slay of all further proceedings in the aforesaid suit till the disposal of a criminal proceeding being G.R. Case No. 221 of 1994 pending in the court of the City Division Judicial Magistrate. Burdwan which has been started under section 420/407/468/489/120B of the indian Penal Code.
2. The facts leading to the filing of the application under section 151 of the Code of Civil Procedure can be briefly staled as follows :
On 23.7.93, an accident took place in the cold storage of Satima Cold Storage being the plaintiff in the aforesaid money suit. On 24th July. 1993, the petitioners appointed a surveyor who made a report on 25th July, 1993 in which it was stated that the accident was beyond the control of the plaintiff Satima Cold Storage. On 29.7.93. the petitioners appointed another surveyor viz. Mahata Pademsay Surveyor Company. On 2.12.93, all documents pertaining to accident were filed with the petitioners by the Satima Cold Storage and on 3.12.93 Saflma Cold Storage filed a claimpetition for compensation inter alia for an amount of Rs. 24,25,56.834.28 as compensation on account of deterioration of stock of potatoes and other damages. On 17.12.93, the second surveyor, Mahala Pademsey sealed the damaged parts of the colct storage which was damaged in the accident and was sealed by the first surveyor. On 24.12.93, the damaged parts again were sealed by the second surveyor company and were taken delivery by them to get the. same examined in C.M.R.E.. Durgapur. The second surveyor wrote a letter on 6th January, 1994 in which it was admitted that the seal and signature of the Satima Cold Storage was intact in the damaged parts of the said cold storage. The first surveyor was however, withdrawn on 17lh of January. 1994 and on 4th of February, 1994, the second surveyor company wrote another letter in which it was alleged that the seal affixed on the damaged parts was the shellac pressed with coin and the signature was made by one Sri Jashmir Singh and not by the Manager partner of the Satima Cold Storage. According to the plaintiff, Salima Cold Storage, after entering through the magnitude of the toss suffered by it due to the accident, the surveyor company along with the officials of the defendant-Insurance Company made a conspiracy and changed the damaged parts only to divert the claim of the Satima Cold Storage. On the basis of the reasonable suspicion that the seal was broken and damaged parts were charged by the defendants and the surveyor company, the plaintiff Satima Cold Storage had to lodge F.I.R. on 7.2.94 at Burdwan Police Station under section 420/467/468/489/ 120B of the indian Penal Code. The said criminal case is pending as G.R. Case No. 221 of 1994 before the learned Sub Divisional Judicial Magistrate, Burdwan. it is alleged by the plaintiff Satima Cold Storage lhat after knowing about the FIR lodged on 17.2.94. the said surveyor company again changed their stand within 5 days by admitting that all the identified tags were duly signed by the Manager Partner of the plaintiff and not by the said Jashmir Singh. As per the charge-sheet submitted in the criminal proceeding, the seal embossed of Goddess (Satima) was found intact in the two nos of damaged pipes and the seals in the remaining two nos. of pipes were tampered and changed. it was further alleged by the opposite party that the criminal proceeding was started only on 17th of February, 1994 that is long after the filing of the claim documents by the plaintiff Salima Cold Storage to the insurance Company which was made on 3rd December of 1993. it is further alleged lhat the criminal proceeding is. therefore, a subsequent happening after the claim was made and there is no connection between Ihe civil suit and the criminal proceedings. Before we proceed further, we may record here that the plaintiff Satima Cold Storage has filed the present money suit being Money Suit No. 33 of 95 praying for the following reliefs:
(a) Decree in favour of the plaintiff or alternatively Jointly in favour of the plaintiff and the proforma defendant No. 5 for Rs. 64,33.54,793.03 as mentioned in the schedule of the plaint:
(b) Interest on the above amount at the rate of 21.25% per annum during the pendency of the suit and till recovery;
(c) Interest on suits:
(d) Interest on decrees:
(e) Costs:
(f) Further relief or reliefs which the Satima Cold Storage may be found entitled against the defendants.
3. After filing of the written statement by the defendant No. 1, the following issues were framed.
1. Has the plaintiff got any cause of action
2. Is the suit maintainable in its present form?
3. It the suit barred by the principle of estoppel, waiver and acquiescence?
4. Is the suit barred by limitation?
5. Is the suit bad for non joinder of the necessary parties?
6. Has proper court fee been paid?
7. Is the certificate issued by the Agricultural Marketing Division authorised by law and whether is competent to issue such certificate?
8. Whether the letter of the defendant dated 21.7.93 is sufficient and valid?
9. Was the accident dated 23.7.93 beyond the control of the plaintiff?
10. Whether any condition between the parties can be changed unilaterally by one of the parties and whether in consequence thereof any act can be done by such parties without notice to the other parties?
11. Whether the report of the surveyor was just and proper?
12. Did the plaintiff practise misrepresentation at any stage of the agreement?
13. Are- the prayers of the plaintiff tenable in view of the decision given by the National Consumer Disputes Redressal Commission?
14. Are the plaintiff entitled lo the decrees sought for ?
15. To what other relief/reliefs the plaintiff is entitled?
4. After framing the issues, the instant suit was posted for peremptory hearing on 22.1.97 which was adjourned from lime to time on the prayer of (he defendants and ultimately the suit was posted for hearing on 10th of September, 1997. it is not in dispute that the Summons upon the defendants Nos. 2 and 4 who are the petitioners in this revisional application were served on 2nd November, 1995 and the said defendants did not take any step till 12th March, 1997 when the defendants Nos. 2 and 4 made a prayer for permission to adopt the written statement already filed by the defendant No. 1. After hearing the parties, the Trial Court in view of the application filed on 12th March, 1997 by the petitioners allowed the prayer of the petitioners and the written statement filed by the defendant No. 1 on 17.6.97 was permitted to be adopted. Only on 10th June, 1997 the aforesaid application under section 151 of the Code of Civil Procedure was filed by the officials of the insurance Company viz. the petitioners praying for stay of the money suit till the disposal of the criminal proceeding. The plaintiff/opposite party filed its written objection to the application for stay. By the Impugned order, the Trial Court rcjecled the said application of the petitioners against which the present revisional application has been moved by them.
5. I have heard the learned counsel for both the parties. I have also carefully perused the order Impugned in this revisional application and other materials on record. Having heard the learned counsel for the parties and after giving my serious considerations to the submissions made on behalf of the parties, 1 am of the view that the learned Judge has nol acted illegally and with material irregularity in the exercise of his jurisdiction in rejecting the application filed by the petitioners under section 151 of the Code of Civil Procedure by which the petitioners sought to stay the proceedings in the civil suit till the disposal of the criminal proceeding. On behalf of the petitioners Dr. Tapas Kr. Banerjee submitted that as the civil suit and the criminal proceeding being based upon the same set of facts and accident being the subject-matter of the suit and the criminal proceeding, the petitioners will be highly prejudiced if they were to disclose their defence to be taken in the criminal proceeding by way of allowing the civil suit to proceed.
6. This submission of Dr. Banerjee was however contested by Mr. Dutta. appearing on behalf if the plaintiff/opposite party No. 1. in my view. Dr. Banerjee was wrong in his submission that the issues in the civil suit and the poinls for determination in the criminal proceeding can be said to be the same and identical. in my view, the civil suit shall determine the rights and obligations between the parties relating to the subject-matter of the suit while criminal proceeding is aimed at punishing an offender which is an offence against the State. I am also in agreement with the Trial Court that in a suit for recovery of money based on insurance policy, the main issue that would be decided would be whether the plaintiff/opposite party No. 1 is entitled to such a decree in terms of the insurance Policy and whether in fact to accident occxirred. there were damages to the extent claimed by the plaintiff/ opposite party No. 1 whereas in the criminal proceeding, the main thing for consideration would be whether the defendant acted in criminal breach of trust, criminal conspiracy and was a party to a criminal conspiracy to commit an offence and tampered with property mark with intent to cause injury to the opposite party No. 1 or made any forgery for the purpose of cheating the opposite party No. 1 after the accident had occurred with the connivance of the officials of the defendant-Insurance Company. From a close examination of the issues framed in the civil suit as quoted herein earlier and the nature of reliefs claimed in the civil suit, it can nol be said by any stretch of imagination that the question of granting reliefs claimed in the suit can at all be granted by the criminal court. From the above, it is also clear that the criminal action and the civil suit can not be said to have been grounded upon the same set of facts and or the identity of the cases are not same and the basis of filing the civil suit as well as the criminal case cannot be similar. The charges, in my view, in FIR are also not similar as alleged by the petitioners. in my view, also, the carriage of the civil suit cannot at all affect the defence of the petitioners in the criminal court in any manner whatsoever and the decision of the criminal court also cannot have any bearing upon the decision of the civil suit and in any event of the matter it cannot be said that there would be conflicting judgment affecting each other by the judgment likely to be passed in the civil suit and the judgment likely to be passed by the criminal court on the basis of the charges to be framed thereunder and evidence in support of it. The reliefs to be obtained in the civil suit cannot be equated with the judgment likely to be passed by the criminal court either holding the charges against the accused by way of acquittal if the chargesagainst the accused persons have been proved or exonerating the accused persons by way of acquittal if the charges levelled against them be not proved. That being the position, in my view, the Trial Court was right in rejecting the application filed by the petitioners under section 151 of the Code of Civil Procedure and in any view of the mailer-it cannot be held that the Trial Court in passing the impugned order has acted illegally and with material irregularity in the exercise of its jurisdiction. Dr. Banerjee also contended that if the defence in the civil suit is disclosed and the civil suit is proceeded with. then the criminal proceeding against the defendant/petitioner shall be prejudiced. in my view, there cannot be any question of any prejudice at this stage in the present case. Admittedly, the written statement has been filed by the petitioners as well as by the insurance Company. Therefore, whatever defence that the defendants have in their pocket has already been disclosed by the filing of the written statement. Dr. Banerjee however, contended that the written statement had to be filed only because the Trial Court passed an order lhal if the written stalcment was not filed within the time mentioned in that order; the suit shall proceed ex parte. The facts appearing from the records, however do not support such contention of Dr. Banerjee. From the records. it appears that the petitioners prayed for several adjournments for the purpose of filing written statement. While applying for adjournments, they never alleged that if the written statement was filed, they will be seriously prejudiced in the trial of the criminal proceeding. Apart from that the petitioners or the proforma opposite party No. 12 have not filed any application for stay of the civil suit till the criminal proceeding was over at the time when the Trial Court was directing the petilioners or the proforma opposite parly No. 12 to file the written statement. The present application for stay was filed only in the year 1997 when the summons were served upon the petilioners in 1995. Therefore, I am unable to agree wilh Dr. Banerjee that the written statement had to be filed because of the directions made by the trial court. in any view of the matter, I am of the view that the apprehension of Ihe petilioners to the effect that their defence shall be disclosed in the criminal proceeding if they filed a written slalement and proceed wilh the civil suit, shall not at all be acceptable because there was no reason to believe lhat the defence of Ihe petitioners in the criminal proceeding could be disclosed after they filed written statement in the civil suit. In my view, what the defendants have pleaded in the written statement is that they are not liable to pay damages to the plaintiff/opposite parly No. 1 in terms of the insurance policy and the alleged accident had taken place due to negligence of the plaintiff/opposite party No. 1. Therefore, the mere statement of facts relating to Ihe incident of accident and insurance policy shall not disclose their defence to be taken in the criminal proceeding. Assuming for argument's sake, the issues involved in the civil suit and the criminal proceeding are Identical and same even then, in my view, the Trial Court has acted within its jurisdiction by rejecting the application filed by the petitioners under section 151 of the Code of Civil Procedure for stay of the civil suit till the disposal of the criminal proceeding by the criminal court.
7. There is nothing in the Code of Civil Procedure which confers the jurisdiction on civil courts to stay civil proceedings till the criminal proceeding is finally disposed of excepting the provisions contained in section 151 of the Code of Civil Procedure. No doubt, civil courts have wide power under section 151 of the Code of Civil Procedure to make orders for ends of justice or toprevent abuse of the process of court. it is also well settled that the exercise of power under section 151 of the Code of Civil Procedure can be made only where there is no specific provision in the Code of Civil Procedure. Therefore, it must be said that the Court is conferred with power under section 151 of the Code of Civil Procedure to pass orders for ends of justice or to prevent abuse of the process of the Court,'if there is no provision in that respect in the Code of Civil Procedure. This does not mean that the principles for grant of stay of civil suit as in section 10 of the Code of Civil Procedure should not be followed. While allowing the application for stay under section 151 of the Code of Civil Procedure, the court must consider certain conditions to be fulfilled for obtaining an order of stay of a civil suit. in considering the application for stay, therefore, the main principle to be followed by the civil courts is to be considered in the light of the doctrine of res judicata. in my view, the findings of the civil court cannot have any binding effect on the criminal proceeding excepting as an evidentiary value, if at all in deciding the disputes raised in the criminal proceeding. Therefore, in my view, there should be no reason for the court to hold that such an order of stay of the civil suit should be passed in view of the pendency of the criminal proceeding for ends of justice. In any view of the mailer, the disclosure of the defence of the petitioners by filing the written statement in the suit would not in any way prejudice the defence that shall be taken by the petilioners in the criminal proceeding initiated under section 420/407/468/ 120B of the indian Penal Code. in the case of M.S. Sheriff' v. State of Madras, : [1954]1SCR1144 , the Supreme Court of india has observed that as between the civil suit and the criminal proceeding, the latter should be given precedence and there is no hard and fast rule which can be laid down in the matter of allowing or refusing the prayer for stay of a civil suit, till criminal proceeding is concluded. in the particular facts of lhat case, the Supreme Court was of the view that the civil proceeding shall remain stayed till the criminal proceeding was concluded. But in the said decision, the Supreme Court pointed out lhat the possibility of conflicting decisions in the civil and criminal courts cannot be a relevant consideration but the possibility of conflicting decisions may create embarrassment to the Courl. From the aforesaid principles laid down by the Supreme Court in the aforesaid decision, it cannot, therefore, be said that any general proposition was laid down by the Supreme Court in the said decision Lhat invariably the civil suit should make way for the criminal case but such question can only be decided on facts and circumstances of a particular case. in J.M. Locas v. Official Assignee of Bengal 24 CWN 418. a Division Banch of this court at p. 424 has observed as follows :
'Though no invariable rule can be laid down, it is ordinarily undesirable to institute criminal proceedings until determination of civil proceedings in which the same issues are involved. it is too well known to need elaboration that criminal proceedings lend themselves to the unscrupulous application of improper pressure with a view to influencing the course of the civil proceedings, and beyond that there is the mischief, illustrated by this case of criminal proceedings being instituted with an imperfect appreciation of the facts where they have not been ascertained in the more searching investigation of a civil court.'
8. The aforesaid view which was expressed in the case of J.M. Locas v. Official Assignee of Bengal, 24 CWN p. 418 was also quoted with approvalby another Division Bench decision of this Court in the case of Jaynarayan Mishra v. State and others, 1966 Criminal Law Journal 207. in the aforesaid decision, direction was made to stay criminal proceeding till the disposal of the civil suit which is just the reverse so far as this case is concerned. Again in the case of Supdt. and Remembrancer of legal Affairs West Bengal v. Birendra Chandra Chakraborty : 1974CriLJ341 , the Supreme Court at Paragraph '4' observed as follows :
'When a dispute which has arisen between the parties is essentially of a civil nature and in such situation such dispute is to be decided before the question of criminal liability can be satisfactorily adjudicated upon. As noted herein earlier, it would not be possible to fasten the criminal liability beyond reasonable doubt upon the petitioners before the right is properly established by means of the money suit which is now pending. 1 think that the Trial Court, therefore, was correct in coming to the conclusion, having regard to the facts and circumstances of this case that a dispute of an essentially civil nature had to be decided between the parlies before any question of criminal liability could be satisfactorily adjudicated upon.'
A learned single Judge of the court in the case of Ashok Kr. Jaiswal and others v. State and another, 1989 Criminal Law Reporter (Calcutta) 310 held after considering the principles laid down by the Supreme Court in M.S. Sheriff's case that if the criminal case was allowed to proceed and end either in conviction or in acquittal, it may be embarrassing for the civil court to take a proper decision on the evidence which may be adduced before it and if the criminal case is stayed and the civil suit is allowed to proceed, the decree in such suit will not in any way cause any embarrassment to the criminal court. in view of the discussions made herein above. I am, therefore, of the view that the learned Judge was perfectly justified in refusing to grant slay of civil suit tilt the disposal of the criminal proceeding in the exercise of his power under section 151 of the Code of Civil Procedure, which, in my view, was properly exercised by the learned Trial Judge which cannot be interfered with in the exercise of my discretionary power under section 115 of the Code of Civil Procedure. However, the question raised in the present revisional application has been set at rest by a recent decision of the Supreme Court in the case of Slate of Rajasthan v. Kalytmsundaram and others, : [1996]2SCR463 . in that decision also, the High Court stayed the proceedings of the civil suit pending disposal of the criminal case. Feeling aggrieved by the said order of the High Court of Rajasthan, a special leave petition was moved. in that decision in Paragraph '3', the Supreme Court has observed as follows:
'It is settled law that pendency of the criminal matters would not be an impediment to proceed with the civil suits. The criminal court would deal with the offence punishable under the Act. On the other hand, the Courts rarely stay the criminal cases and only when the compelling circumstances require the exercise of their power. We have never come across stay of any civil suits by the courts so far. The High Court of Rajasthan is only an exception to pass such orders. The High Court proceeded on a wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. it is not a correct principle of law. Even otherwise, it no longer subsists, since many of them have filed their defence in the civil suit. On principleof law, we hold that the approach adopted by the High Court is not correct.But since the defence has already been filed nothing survives in (hismatter.'
9. From the aforesaid observation of the Supreme Court which squarely applies to the present case, it must be concluded that there is no jurlsdicttonal error in the order which is impugned in this revislonal application. in this case, written statement has already been filed and defence has already been disclosed. From the aforesaid observations of the Supreme Court, it also appears that the High Court proceeded on a wrong premise that the accused would be expected to disclose their defence in the criminal case by asking them to proceed with the trial of the suit. The Supreme Court also has taken a note of surprise by observing that it did not come across stay of any civil suit till the criminal proceeding was over by the courts so far. That being the position now, there is no reason to interfere with the order impugned in this rcvisional application. Before parting with this decision, 1 however, point out that there is a single bench decision of this court in the case of Apeejay Put. Ltd. v. Raghauachari. Narasingham, 1989(2) CLJ on this point which cannot be held to be correct exposition of law in view of the aforesaid Supreme Court decision and the aforesaid decisions of this court. Even assuming that in the facts and circumstances of this case, the Trial Court was not justified in rejecting the prayer for stay of all further proceeding of the civil suit till the final decision is made in the criminal proceeding, still then 1 am of the view that since the Trial Court has exercised its discretion in a manner which cannot be said to be arbitrary and without jurisdiction, I am not permitted to interfere with the order impugned in this revisional application.
10. Before parting with this judgment one more aspect of the matter for which the impugned order does not warrant any interference in the exercise of my revisional power is needed to be discussed. As noted herein earlier, the summons of the petitioners were served on 2.11.95 and it was only on 12.3.97, the petitioners prayed for permission to adopt the written statement of the defendant/company and 3 months thereafter the petitioners filed the application for stay of the civil suit when the suit was filed for pre-emptory hearing. Therefore, in my view, clearly the motive behind this was to delay the disposal of the suit so that the decree for payment if at all passed under the contract of insurance shall be delayed for an indefinite period. Therefore. the whole motive of the petitioners to file the application under section 151 of the Code of Civil Procedure and the present revisional application is to drag the litigation for an indefinite period. Therefore, I hold that the application under section 151 of the Code of Civil Procedure and the revisional application are not at all bona fide applications.
11. Accordingly, the revisional application fails.
12. There wilt be no order as to costs.
13. After the judgment was delivered, the learned advocate for the petitioners asked for stay of operation of this order in order to enable them to move the Hon'ble Supreme Court. In the facts and circumstances of this case. I do not find any reason to allow such prayer.
Accordingly, the prayer for stay is refused.
14. Application fails