Madras High Court
Sivanandam Ammal vs S. Kadiresan And Ors. on 23 July, 1990
Equivalent citations: (1990)2MLJ292
ORDER Srinivasan, J.
1. This case provides a glaring instance where an application under Section 10, Civil Procedure Code is ordered without the Court applying its mind to the provisions of the said section. Under the section, a suit can be stayed only if the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between the parties under whom they all or any of them claim litigating under the same title.
2. In this case a suit was filed by the petitioner's father for declaration of his title and for recovery of possession with past and future measne profits against his brother and others. That suit was dismissed by the Subordinate Judge, Madurai and during the pendency of an appeal against the same, the petitioner's father died. The petitioner and other legal representatives came on record in the appeal and ultimately the appeal was allowed and the matter was remanded to the trial court for fresh disposal, The order of remand is challenged in C.M.A. No. 133 of 1988 pending on the file of this court.
3. The present suit O.S. No. 306 of 1984 is filed by the petitioner for partition and separate possession of the suit properties against her brother and other legal representatives of the petitioner's father. This suit relates to the properties left by the petitioner's father. The plaintiff claims one-fourth share in the properties.
4. At the instance of the first defendant Rajagopal Chettiar, the brother of petitioner's father who was one of the contesting defendants in the earlier suit filed by the father has been impleaded in the present suit After he was impleaded the first defendant in the suit filed the application under Section 10, Civil Procedure Code for staying the suit till the disposal of C.M.A. No.133 of 1984 on the file of this court. The Subordinate Judge has ordered the application on the strength of the following observations.
In as much as it is pleaded that their proceedings is connected with this suit, I feel that the proceeding in the suit has to be stayed till A.A.O. No. 233 of 1984 is disposed of.
5. The order of the learned Subordinate Judge, clearly discloses that he has not chosen to apply his mind either to the facts of this case or to the provisions of Section 10, Civil Procedure Code. Th6 question which ought to have been considered by the learned Subordinate Judge is whether the subject matter in issue in the prior suit. O.S. No. 606 of 1984 in directly and substantially in question and in issue in the prior suit of O.S. No. 1010 of 1980. The facts set out by me earlier in this order show that the issue is entirely different and the question which arises for consideration in the later suit has nothing to do with the question which arose for consideration in the earlier suit.
6. Of-late it is noticed by this court that in several cases whenever applications under Section 10 Civil Procedure code are filed, they are granted as a matter of course without the Court applying its mind as to whether they are matters really covered by Section 10 Civil Procedure Code and whether the requirement of the section is fulfilled, such as a course is highly condemnable. The Court, which is in charge of a suit ought to consider whether the suit should be stayed or not, before an order of stay is granted. That has not been done in this case and there are several other instances in which similar procedure has been adopted by the member of the Subordinate Judiciary.
7. This court views with concern that the Subordinate Judiciary should go on ignoring the provisions of the Code of Civil Procedure very often without even looking into them and without giving any consideration to the facts of the cases pending before them. Moreover, once a suit is stayed under Section 10, C.P.C., then the court does not take care to find out whether the proceedings during the pendency of which the suits are stayed, continue to be or not. Moreover the suits stayed under Section 10, C.P.C. are posted to a particular date, they are automatically adjourned to a further date even without the cases being called in open court and dates being fixed by the Bench Clerk himself. That practice should also be put an end to immediately. Whenever a suit is stayed under Section 10, C.P.C., the duty of the Court is to post it to a particular date and on that date ascertain from the lawyers or the parties as to whether the other proceeding during the pendency of which the suit has been stayed is still pending and the Presiding Officer shall record such information obtained by him. If the information is to the effect that the other proceeding is still pending, then the Presiding Officer may adjourn the matter to another date. If on the other hand, the information is that it is not pending it is the duty of the Presiding Officer to post the suit to a short date for disposal.
8. The attitude taken by the Subordinate Judiciary in these matters has led to inordinate delay in disposal of the matters and mounting of arrears thus causing undue and irreparable hardship to the litigants which will ultimately lead to the litigants losing confidence in the working of the judicial process in this state.
9. The directions contained in the order should be strictly obeyed by the members of the Subordinate Judiciary.
10. In the facts and circumstances of this case, the order granting stay under Section 10, C.P.C. is wholly unwarranted and in fact the learned Subordinate Judge has exercised a jurisdiction which is not vested in him by law. He ought not to have granted stay Of the suit. Consequently the order passed in I.A. No.161 of 1988 is set aside. Civil Revision Petition is allowed. The trial court is directed to take up O.S. No. 306 of 1984 for disposal immediately. The suit shall be disposed of on or before 31.1.1991 and a report should be sent to this court. There will be no order as to costs.