Calcutta High Court
Sri Pradeep Kumar Saraff vs Sri Gopi Kishan Saraff & Ors on 25 August, 2010
Author: Sanjib Banerjee
Bench: Sanjib Banerjee
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
GA No. 2596 of 2010
CS No. 3 of 2010
SRI PRADEEP KUMAR SARAFF
Versus
SRI GOPI KISHAN SARAFF & ORS.
&
ALP No. 2 of 2010
SRI PRADEEP KUMAR SARAFF
Versus
SRI SURESH KUMAR SARAFF & ORS.
Appearance
Mr. S. Sengupta, Advocate
Mr. P. Goswami, Advocate
Mr. Sakya Sen, Advocate
Mr. L.R. Mondal, Advocate
BEFORE:
The Hon'ble JUSTICE SANJIB BANERJEE
Date : 25th August, 2010.
The Court : G.A. No. 2596 of 2010 is the fourth defendant's application under Section 10 of the Civil Procedure Code on the ground that a previous partition suit, being partition suit no. 57 of 2007, had been instituted in the Court of the Civil Judge, Senior Division, Raiganj, Uttar Dinajpur and the same is pending. The fourth defendant says that the parties are the same, the properties involved are identical and the scope of the two suits is similar.
2
On behalf of the plaintiff it is submitted that the fourth defendant herein as the plaintiff in the suit before the Raiganj Court had taken no steps. The present plaintiff says that the fourth defendant has dealt with some of the joint properties. The plaintiff says that the present application has been made with ulterior motive and to negate the effect of the interlocutory order subsisting in the present suit.
Section 10 of the Code mandates that no Court shall proceed with the trial of any suit in which the matters which are in issue are also directly and substantially in issue in a previously instituted suit between the same parties. There is no dispute that the parties to both actions are identical. Both suits are for partition. In view of the identity of the matters which are directly and substantially in issue or would be directly or substantially in issue in the two suits, there is no option but to stay the trial of the present suit.
G.A. No. 2596 of 2010 is allowed by staying the trial of C.S. No. 3 of 2010. There will be no order as to costs.
ALP No. 2 of 2010 has been filed by the plaintiff in C.S. No. 3 of 2010 for transfer of the Raiganj suit to this Court on the ground that despite the applicant's best efforts, no meaningful steps have been taken in the Raiganj suit. The plaintiff in the Raiganj suit, who is the fourth defendant in C.S. No. 3 of 2010, undertakes to take expeditious steps for the meaningful progress of the Raiganj suit. In any event, since it is a 3 partition suit, it will be open to the applicant to take appropriate steps in the Raiganj suit for the progress of that suit. It will also be open to the applicant to apply before the Raiganj Court for being given the carriage of proceedings in such suit so that partition suit no. 57 of 2007 is continued with due diligence and concluded expeditiously.
The applicant in the Clause 13 proceedings apprehends that by obtaining a stay of the suit filed in this Court, the plaintiff in the Raiganj suit will continue to merrily deal with the joint properties. The applicant needs to be reminded that notwithstanding the applicant being a defendant in the Raiganj suit, it is open to the applicant to apply as a party in a partition suit to seek an appropriate order in respect of the joint assets.
ALP No. 2 of 2010 is disposed on the above basis without any order as to costs.
Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SANJIB BANERJEE, J.) sg.