Patna High Court
Smt. Lakshmi Devi vs Rajendra Prasad Sao And Ors. on 30 November, 1989
Equivalent citations: AIR1990PAT210, 1990(38)BLJR841, AIR 1990 PATNA 210
JUDGMENT Binod Kumar Roy, J.
1. The plaintiff appellant has come up against an order by which her prayer to appoint receiver has been rejected on a technical ground that the trial of the suit had already been stayed earlier by an order dated 3-2-1981.
2. Since the application of the appellant has been rejected on a technical ground, it is not necessary to setforth the merits of the claim of the respective parties.
3. It appears that the plaintiff claimed eight annas share in the properties of the suit asserting her to be daughter of Lakshman Mandal alias Lakshman Sao to which the properties belonged. It further appears that the defendant No. 1 alleged in a probate proceeding (Probate Case No. 16 of 1968) earlier that the plaintiff is not the daughter of Lakshman Mandal aforesaid and asserted title on the basis of an alleged 'Will' said to have been executed by Lakshman Mandal. In the aforesaid probate case it was held that Lakshmi Devi is the daughter of Lakshman Sah and that the alleged 'Will' is not genuine and not last testament of Lakshman Sah. It appears that an appeal being First Appeal No. 19 of 1976 is pending before this Court against adjudication in the Probate case. It also appears that on an application filed by the Respondents, the trial of the instant suit was stayed by an order dated 3-2-1981 and that a revision bearing civil Revision No. 299 of 1981 filed before this Court against the said order was also dismissed as withdrawn by an order dated 7th April, 1981. The court below by the impugned order, as already stated, refused to entertain the petition under Order XL of the Civil P.C. on that the sole ground that the hearing of the suit has already been stayed by an order dated 3-2-1981.
4. Mr. Rudra Deo Kumar Sinha, learned counsel appearing for the appellant, submits that the court below has completely mis-conceived the true nature extent and scope of S. 10 and O. XL R. 1 of the Civil P.C. as also its earlier order dated 3-2-1981 (faint) by that order only trial of the suit was stayed and thus the court below had full jurisdiction to appoint a receiver notwithstanding stay of the trial of the suit. He also by placing reliance on (Smt) Hrideshwari Devi @ Hrideshwari Kumar v. Priyabarat Kumar 1978 BBCJ (HC) 288 prays that a receiver be appointed.
5. Section 10 of the Civil P.C. runs as follows :--
"Say of suit. 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 where such suit is pending in the same or any other court in (India) having jurisdiction to grant the relief claimed, or in any court beyond the limits of (India) established or continued by (the Central Government) (***) and having like jurisdiction, or before (the Supreme Court)."
From a bare perusal of the aforementioned provision, as also of the order dated 3-2-1981, which has been produced before me, it is clear that the court can stay merely the trial of the suit which was done and thus the court had ample jurisdiction to appoint a receiver as contemplated under Order XL Rule 1 of the Civil P.C. and the refusal to entertain the petition on the ground mentioned in the impugned order is patently illegal.
6. Since the court below has not disposed of the application on its merit, I am of the view that the application filed by the appellant under Order XLR. 1 of the Civil PC requires remittance for its disposal on merit.
7. For the reasons aforementioned, this appeal is allowed. The impugned order is set aside and the case is remitted back for its disposal on merit. Since no one has appeared on behalf of the major respondents there shall be no order as to costs.