IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 168 of 2010 Date of decision: 14.3.2011 Ranju Ram and another …Petitioners. Versus Nand Lal and others …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. Whether approved for reporting?1 Yes. For the petitioners: Mr. Satyen Vaidya, Advocate. For the respondents: Mr. Romesh Verma, Advocate. Deepak Gupta, J. (Oral) 1. This petition is directed against the order dated 31st March, 2010 passed by the learned Additional District Judge, Ghumarwin whereby he allowed the application filed by the respondents under Section 10 of the Code of Civil Procedure for stay of proceedings at the appellate stage. 2. The undisputed facts are that the suit out of which the present proceeding arises was filed by the petitioners in the year 1993. The respondents herein filed another suit in the year 1997. There is some 1 Whether the reporters of local papers may be allowed to see the Judgment? Yes. 2 dispute with regard to the fact as to whether the matter directly and substantially in issue in both the suits is same or not, but at this stage I am not going into that question because it is not necessary to decide this factual aspect of the matter in view of the view which I have taken as would be apparent from the subsequent portion of this judgement. 3. As pointed out above, the suit filed by the respondents was the subsequent suit filed in the year 1997. It, however, was decided against the respondents and in favour of the appellants on 4.12.2001. The appeal filed by the respondents herein before the learned lower Appellate Court was allowed in 2009 and the petitioners herein have filed a Regular Second Appeal No. 298 of 2009, which is pending in this Court. 4. The suit of the present petitioners, which was the previously instituted suit, however got delayed and was finally decreed in favour of the petitioners in the year 2002. Two separate appeals by two separate sets of defendants were filed against the common judgement and decree and those two appeals were pending before the learned lower Appellate Court. During the pendency of these two appeals an application under Section 10 was filed and it was 3 prayed that further proceedings in the appeals be stayed till the Regular Second Appeal filed by the present petitioners is decided by this Court. The application filed by the defendants was allowed and proceedings in both the appeals were stayed pending disposal of the RSA by this Court by the learned lower Appellate Court vide the impugned order, which is under challenge in this petition. 5. I have heard Shri Satyen Vaidya learned counsel for the petitioners and Shri Romesh Verma learned counsel for the respondents. 6. In my view the learned lower Appellate Court gravely erred in allowing these applications. Section 10 of the Code of Civil Procedure reads as follows:- “Stay 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 tile 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).” 4 7. A bare perusal of the Section clearly shows that no Court shall proceed with “trial of the suit” in which the matter in issue is also directly and substantially in issue in a previously instituted suit. Therefore, it is more than apparent that what can be stayed is the trail of the suit and that too trial of the subsequently instituted suit. Here the first suit was instituted by the petitioners and the subsequently instituted suit was of the respondents. It is true that the subsequently instituted suit was decided earlier and has reached the stage of second appeal whereas the previously instituted suit is still at the first appellate stage but this does not mean that the previously instituted suit becomes the subsequently instituted suit. The basic purpose of this section is that the subsequently instituted suit has to be stayed. 8. If we go behind the purpose of Section 10, it is obvious that the framers of Section 10 felt that if a matter has already been decided by a Court, the precious time of the Court, the witnesses and the parties should not be wasted in a second trial and the parties should await the judgement of the previously instituted suit so that the trial in the subsequent suit if necessary can be curtailed. Here we are dealing with a case where both the suits proceeded. It is the 5 present respondents who instituted the second suit. When they instituted the second suit and no objection was raised under Section 10 of the CPC can they now take advantage of this quirk of fate that their suit has been decided earlier and now they pray that the previously instituted suit be stayed? In my view the answer has to be in the negative. 9. When the Section talks of stay of trial of the suit it obviously means that the subsequently instituted suit can be stayed only at the trial stage. It is true that normally appellate proceedings are considered to be a continuation of the suit but by no stretch of imagination can it be said that the appellate proceedings are at the “trail stage” of the suit. The mandate of the Section is very clear that only the trial of the suit can be stayed. In very exceptional circumstances stay may also be granted at the appellate stage but normally it is only the trial of the suit which could be stayed and not the appeal. 10. Reliance placed by Shri Romesh Verma, learned counsel for the respondent, on the judgement of this Court in Durga Dass vs. Smt. Gitan Devi and others, AIR 1977 Himachal Pradesh 65, is totally misplaced. In that case the previously instituted suit had been decided and the Letters Patent Appeal arising out of the same was pending. Then the second suit was filed and in the second suit an application was filed by the defendant for stay of the suit. It 6 was in that context that this Court observed that appeal is a continuation of the suit and therefore, the trial of the second suit was stayed. The other judgement relied upon by Shri Romesh Verma is Life Pharmaceuticals (Pvt.) Ltd. vs. Bengal Medical Hall, AIR 1971 Calcutta 345, is not at all applicable because therein the subsequently instituted suit was stayed. Both the suits were at the trial stage. Therefore, this citation has also no application to the facts of the case. 11. I have purposely refrained from giving any finding on the question whether the matter in issue in both the suits is directly and substantially the same, since this may affect the rights of the parties in their suit. 12. In view of the above discussion the present petition is allowed. The order of the learned lower Appellate Court is set aside. At this stage, I have been informed at the bar that one of the appeals has been disposed of as having been withdrawn. If that be correct, the learned trial Court shall decide the second appeal as early as possible. The parties through their counsel are directed to appear before the learned lower appellate Court on 20th April, 2011. 14th March, 2011 (Deepak Gupta) ™ Judge