Orissa High Court
Chandrasekhar Mohanty And Ors. vs State Of Orissa And Ors. on 17 August, 2007
Equivalent citations: 104(2007)CLT779, 2007(II)OLR459
Author: L. Mohapatra
Bench: L. Mohapatra
JUDGMENT L. Mohapatra, J.
1. The plaintiffs have filed this writ application questioning the legality of the order dated 2.4.2004 passed by the learned Civil Judge (Senior Division), Puri in T.S.No. 51 of 2000 directing stay of further proceeding in the said suit in terms of Section 10 of the Code of Civil Procedure.
2. As it appears from the impugned order, an application under Section 10 of the C.P.C. was filed by the opposite party No. 5 and the plaintiff in T.S.No. 151 of 2000 for stay of further proceeding of both the suits till finalization of O.E.A. Appeal No. 8 of 2002. Earlier an order was passed in T.S.No. 51 of 2000 for analogous hearing with T.S.No. 151 of 2000. In view of the above, both the petitions were heard together and were disposed of by the common impugned order. In the application filed under Section 10 of the C.P.C. in T.S.No. 51 of 2000 it was contended that the disputed property under Khata No. 35 stood recorded in the name of Lord Jagannath Mahaprabhu Bije Puri Marfat Mahanta Balaram Kot Matha and that the intermediary interest in the said property vested in the State Government under the provisions of the O.E.A.Act. After vesting, as the said property had not been settled in favour of Lord Jagannath Mahaprabhu Bije Puri, O.E.A. Appeal No. 8 of 2002 has been filed on behalf of the Managing Committee of the Sri Jagannath Temple, Puri through its Administrator which is pending consideration in the Court of the Collector, Puri for final disposal. The plaintiff in T.S.No. 151 of 2000 claimed to have purchased the suit property from the Marfatdar Mahanta under a registered sale deed which is challenged as void and illegal. It was further averred in the petition that in view of pendency of the O.E.A.Appeal relating to the same property, the further proceeding in the suit was required to be stayed. In T.S.No. 151 of 2000 the opposite party No. 5 who is the plaintiff also filed a similar application on same grounds. The petitioners who are plaintiffs in T.S.No. 51 of 2000 and defendants in T.S.No. 151 of 2000 filed objection to both the petitions on the ground that the registered sale deed under which they have purchased the suit land is neither void nor illegal and that Lord Jagannath Mahaprabhu Bije Puri did not have any interest in the said property. It was also their case that the suit property had been settled in Claim Case No. 1829 of 1974 in favour of Mahanta Rama Chandra Das of Balarama Kot Math and no appeal had been filed against the said settlement and there is nothing in the petitions filed under Section 10 of the C.P.C. to show who is the appellant in O.E.A.Appeal No. 8 of 2002 and therefore, such petition is liable to be rejected. The Trial Court on perusal of the records came to a conclusion that the subject matter of both the suits relates to Sabik Khata No. 35 appertaining to Sabik plot Nos. 334 and 335 which happened to be of intermediary interest and stood recorded in the name of Lord Jagannath Mahaprabhu Bije Puri Marfat Mahanta Balaram Kot Math. Though according to opposite party No. 5, the suit property vested in the State Government under the provisions of O.E.A.Act, the same having not been settled in the name of Sri Jagannath Mahaprabhu Bije Puri, the O.E.A.Appeal has been filed by the Managing Committee of Sri Jagannath Temple, Puri through its Administrator. It was also submitted that in view of the provisions of Section 5 of the Sri Jagannath Temple Act, Sri Jagannath Mahaprabhu Bije Puri has been made a party in the Civil Suit filed by the said opposite party in T.S.No. 151 of 2000. In course of hearing of the petition, the xerox copy of the order sheet in O.E.A. Case No. 310 of 1990 was filed by the Administrator of Sri Jagannath Temple, Puri as well as the order sheet in O.E.A. Appeal No. 8 of 2002 pending before the Collector, Puri relating to the suit properties have been filed on behalf of the defendant in T.S.No. 51 of 2000. On perusal of the said documents, the trial Court was of the view that after rejection of the claim petition in the aforesaid O.E.A.Case, an appeal has been filed and the appeal was pending consideration. This appeal has been filed by Sri Jagannath Mahaprabhu Bije Puri Marfat Managing Committee against the present plaintiff and two others. The trial Court further observed that the suit property being the same in both the suits as well as the O.E.A.Appeal, it would be just and proper to stay further proceeding in both the suits till disposal of the appeal by the Collector and accordingly allowed the petition.
3. Shri Bijan Roy, the learned Senior Counsel appearing for the petitioners challenges the legality of the order only on the ground that Section 10 of the C.P.C. has no application to the facts of the present case and the Court could not have stayed further proceeding in the suits pending before the O.E.A. authority in absence of satisfaction of the requirements of Section 10 of the C.P.C. In this connection, the learned Counsel also relied upon a decision of the Apex Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara reported in 2004 AIR SCW 6900.
4. Shri Ashok Mohanty, the learned Senior Counsel appearing for the opposite party No. 5 in support of the impugned order submitted that the property in dispute being the same before the Civil Court as well as the authority under the O.E.A.Act, unless further proceedings in both the suits are stayed till disposal of the O.E.A.Appeal, there may be contradictory findings by two different forums and in order to avoid any such eventuality, it was necessary for the Trial Court to stay further proceedings in both the suits. The learned Counsel also relied upon some decisions in support of his contention which shall be dealt with later on.
5. There is no dispute at the Bar that in respect of the property in dispute T.S.No. 51 of 2000 and T.S.No. 151 of 2000 are pending before the Civil Court and O.E.A.Appeal No. 8 of 2002 is pending before the Collector, Puri. The only question raised before this Court is as to whether pending disposal of the O.E.A.Appeal No. 8 of 2002 further proceeding in both the suits should be stayed or not. Shri Bijan Roy, the learned senior counsel appearing for the petitioners relied upon a decision of the Apex Court in the case of National Institute of Mental Health and Neuro Sciences v. C.Parameshwara (supra) and submitted that O.E.A. Appeal not being a suit, Section 10 of the Code of Civil Procedure has no application and accordingly, the impugned order should not have been passed by the learned Civil Judge under Section 10 of the C.P.C. In the aforesaid decision reiied upon by the learned senior counsel for the petitioners the Apex Court held that the object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. In the said case a Pharmacist was removed for misappropriation of drugs. The said order was set aside by the Labour Court. The employer filed a writ application challenging the order of the Labour Court and also filed a civil suit to recover the said loss. An application was filed to stay further proceeding in the suit. Therefore, the question raised before the Court was that pending finalisation of the writ application filed by the employer challenging the order of the Labour Court whether further proceeding in the suit should be stayed or not. In this connection, the Apex Court held that Section 10 applied only to suit instituted in a civil Court and cannot apply to proceedings of other nature instituted under any other statute. Referring to the said decision it was contended by the learned senior counsel appearing for the petitioners that the proceeding under the O.E.A.Act cannot be termed as suit and, therefore, further proceeding in both the suits pending before the civil Court cannot be stayed. Shri Mohanty, the learned senior counsel appearing for the opposite party No. 5 relied upon a decision of this Court in the case of Jayadev Pradhan and Ors. v. Managobinda Sathua . In the said decision a suit had been filed for declaration of title, possession and injunction. The tenancy rights were also claimed by both the parties to the suit under Orissa Estates Abolition Act. The Estate Abolition Officer recognized the plaintiffs title and challenging the same, the defendants had preferred an appeal which was pending consideration. An application was filed in the civil suit for stay of further proceeding pending disposal of the O.E.A.Appeal and the said petition having been rejected, the matter came to this Court. On analysis of the dispute involved in the case, this Court was of the view that for the ends of justice further proceeding in the suit should be stayed till disposal of the O.E.A.Appeal. The learned Counsel also relied on another decision of this Court in the case of Sri Jagannath Mahaprabhu v. Bidyut Sahoo reported in 64 (1987). CLT 587. In the said case also there was a proceeding under the Orissa House Rent Control Act, 1967 and a proceeding under the Orissa Estates Abolition Act. The Order passed by the House Rent Controller was under execution. In the Execution Case an application was filed under Section 47 of Civil Procedure Code challenging excitability of the order on the ground that an application for settlement under Sections 6 and 8-A of O.E.A. Act was pending for consideration. This Court held that the proper procedure for the executing Court is to stay its hand until final disposal of the claim made by the landlord under the provisions of the O.E.A.Act.
The learned Counsel also relied on another decision of the Apex Court in the case of P. Nirathilingam v. Annaya Nadar and Ors. . In the said case there was a proceeding under the provisions of Tamil Nadu Debt Relief Act as well as a civil suit for realization of mortgage amount. Referring to Section 5 of Tamil Nadu Debt Relief Act, Sections 9 and 10 of Civil Procedure Code, the Apex Court held that further proceeding in the suit should be stayed till the Tahasildar disposes of the application filed by the Debtor under the Tamil Nadu Debt Relief Act.
Section 10 C.P.C. provides that no Court shall 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 between the same parties, or between parties under whom they or any of them claim litigating under the same title. The section does not speak of any proceeding under any other statute. Here is a case where two suits are pending before the learned Civil Judge between the same parties and the matter in issue is substantially the same in both the suits. There is another proceeding under the O.E.A.Act involving the same suit property between the same parties. Therefore, the question that arises for consideration is even though the proceeding under the O.E.A.Act is under the provisions of the Orissa Estate Abolition Act, whether further proceeding in the suit should be stayed till disposal of the O.E.A.Appeal or not. As decided by the Apex Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara (supra) Section 10 of Civil Procedure Code strictly has no application in the present case. But considering the nature of dispute involved and the prayers made in both the suits, it will be appropriate to stay further proceeding in both the suits till disposal of O.E.A.Appeal in exercise of jurisdiction under Section 151 of the C.P.C. This view is also supported by the decision of this Court in the case of Jayadev Pradhan and Ors. v. Managobinda Sathua (supra). I, therefore, while accepting the contention of the learned senior counsel appearing for the petitioners that Section 10 of the C.P.C. has no application to the facts of the present case, hold that considering the nature of dispute between the parties and the nature of relief claimed, further proceeding in both the suits should be stayed till disposal of the O.E.A.Appeal by invoking the inherent jurisdiction of the Court under Section 151 of the C.P.C. This Court has recently held in the case of Nilamadhab Deo and Anr. v. Padma Charan Panda and Ors. in W.P.(C) No. 5284 of 2007 disposed of on 10.8.2007 that where Section 10 of the C.P.C. has no application, in appropriate cases the Court could exercise its inherent jurisdiction under Section 151 C.P.C. for ends of justice.
6. I, accordingly hold that the trial Court could not have applied Section 10 of. the C.P.C. to the present case for directing stay of further proceeding in both the suits, but in exercise of inherent jurisdiction both the suits should be stayed till disposal of the O.E.A. Appeal No. 8 of 2002.
The writ application is accordingly disposed of.