1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1444 OF 2009 Shri Raghunath Gangaram Wadekar. ... Petitioner. V/s. Sau. Monali Manohar Terade. ... Respondent. Ms. Gauri Godse for the Petitioner. Mr. P.S. Dani for the Respondent. CORAM : S.C. DHARMADHIKARI, J. DATED : 15TH JUNE, 2009. P.C. :- The Petitioner is aggrieved by an order passed by the Trial Court on 11th December 2008 in Regular Civil Suit No.9 of 2001. The Petitioner – Original Plaintiff instituted against the Respondent – Original Defendant a Civil Suit being Regular Civil Suit No.169 of 2000 for permanent injunction in respect of the suit property. 2. It is his grievance that during the pendency of Regular Civil Suit No.169 of 2000, the Respondent filed Regular Civil 2 Suit No.9 of 2001 in the Court of Civil Judge, Junior Division, Pali for declaration and injunction against the Petitioner in respect of the property covered by Regular Civil Suit No.9 of 2001. 3. It is not in dispute that the Petitioner is the Defendant in Regular Civil Suit No.9 of 2001 and therefore, has filed a Written Statement therein. Regular Civil Suit No. 9 of 2001 is admittedly pending. 4. However, on 18th July 2008, the Petitioner’s Suit No.169 of 2000 came to be dismissed by the Trial Court. The Petitioner has carried the matter in Appeal and Regular Civil Appeal No.141 of 2008 is pending in the District Court, Alibag. 5. The Petitioner filed an application purporting to be one under Section 10 of the C.P.C. in the Respondent’s Regular Civil Suit No.9 of 2001, praying that hearing of the Respondent’s Suit be stayed. The Respondent resisted this application and by the impugned order the learned Judge has 3 rejected the same. That is how the aggrieved Petitioner, the Defendant in Regular Civil Suit No.9 of 2001 has invoked this Court’s jurisdiction under Article 227 of the Constitution of India. 6. Inviting my attention to Section 10 of the C.P.C. and the Judgment of the learned Single Judge (V.G. Palshikar,J. as His Lordship then was) reported in 2004(3) All MR 520 (Gregorio Pereira (deceased) through L.Rs. & Anr. V/s. Damazio Bento Pereira & Ors.), Ms. Godse, learned Advocate appearing for the Petitioner contends that the learned Judge lost sight of the object and purpose of inserting Section 10 in the C.P.C. The purpose is to avoid the final judgment between same parties contesting same subject matter, being questioned in another round of litigation. The principle that is contemplated is that the final decision in the previously instituted Suit operates as res- judicata in the subsequent Suit and once this test is satisfied, Section 10 will come into play. In the instant circumstances, the learned Judge was in error in not staying the Suit because all ingredients of Section 10 are satisfied. 4 Considering the mandate of Section 10 and Section 107 of C.P.C. so also applying the settled principle that an Appeal is a continuation of the original proceedings, the learned Judge, should have exercised his powers and stayed the Suit instituted by the Respondent. 7. On the other hand, Mr. Dani, learned Advocate appearing for the Respondent supported the impugned Judgment. 8. Having heard the learned Advocates for both sides and perusing with their assistance, the subject Petition and the annexures including the impugned order, I am of the view that no interference is needed with the order under challenge at this stage. 9. The learned Judge is right in holding that Regular Civil Suit No.169 of 2000 is no longer pending. It is disposed off finally against the Petitioner. These facts are undisputed and if any reference is needed suffice it to see page 41 para 1 which is a copy of the application made by the Petitioner to 5 the Trial Court. Once paragraphs 1 and 3 of that application are perused and the application is considered as a whole, it is clear that the same was not invoking strictly Section 10 of the C.P.C. Once the same was not invoking that provision, the learned Judge has rightly rejected the same. 10. The reliance upon the Judgment of the Single Judge of this Court in Gregorio (Supra) is misplaced inasmuch as Section 10 of the C.P.C. is clear. The same mandates that no Court shall proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, or between the parties under whom they or any of them are litigating. The crucial words being where such suit is pending in the same or any other Court having jurisdiction to grant the relief claimed. Admittedly Regular Civil Suit No.169 of 2000 has been finally decided. The Judgment is of dismissal of the said suit which is challenged in Appeal. Therefore, R.C.S. No.169 of 2000 cannot be said to be pending any longer in the Trial Court. The Judgment of the Trial Court being challenged in Appeal, pendency of the Appeal 6 therefore, cannot be a ground for seeking stay of a subsequently instituted Suit by the Respondent. That it is subsequently instituted and is pending and that no such application was made during the pendency of R.C.S. No.169 of 2000 by the Petitioner are the further undisputed facts. In such circumstances, the order under challenge does not suffer from any illegality nor is vitiated by any error apparent on the face of the record so as to call for interference under Article 227 of the Constitution of India. 11. The learned Single Judge of this Court after referring to the facts framed the additional question of law and gave his findings thereon in subsequent paragraphs. It is not necessary to decide any larger issue and more particularly whether the principle laid down in this decision would be applicable to Suits which are finally decided and the Appeals from both Suits, namely, previously and subsequently instituted Suits are pending or the decrees are questioned in higher Court. The larger controversy as to whether in the absence of any application under Section 10 during pendency of the Suits, can this provision be invoked also 7 need not be decided in this case. More so, when Mr. Dani urges that the view taken by the learned Single Judge requires reconsideration. According to him, the provision can have no application after the previously instituted Suit is disposed off by a final Judgment. The said Suit being disposed off on merits, then, its subject matter and that in the subsequently instituted Suit need not be gone into. There is no occasion, then, to find out whether the ingredients of Section 10 of C.P.C. are complied with. In this behalf he relies upon a Judgment of the Hon’ble Supreme Court reported in AIR 2005 SC 242 (National Institute of Mental Health and Neuro Sciences V/s. C. Parameshwara) and more particularly the observations in para 8 thereof. As observed above, let this controversy and larger issues be decided in appropriate proceedings. 12. If the object and purpose in enacting Section 10 is what has been culled out by the learned Judge, then, I see no prejudice to the Petitioner at this stage. The Petitioner can invoke the said principle even before the Appellate Court and at the trial of the Suit instituted by the Respondent. If any 8 adverse order is made in the Suit instituted by the Respondent, then, while carrying the matter in Appeal so also thereafter, in the higher Court, nothing prevents the Petitioner from relying upon the principles as are laid down in the decision of the Single Judge. However, at this stage, it would not be proper to go into these contentions and more so, when the Petitioner’s Suit has been disposed off. Therefore, leaving upon all contentions based upon the principles in the Single Judge’s decision of this Court and granting liberty to the Petitioner to raise them in appropriate proceedings, this Petition is disposed off. No costs. S.C. DHARMADHIKARI, J.