SBCWP NO.518/2008 – ALLARAKH V/S THE ADJ (FAST TRACK) NO.3, BIKANER AND ORS. : JUDGMENT DATED 24.7.2008 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL WRIT PETITION NO.518/2008 Allah Rakh versus Additional Dist. Judge (Fast Track) No.3, Bikaner and ors. PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.Manoj Bhandari, for the petitioner Mr.Anil Vyas on behalf of Mr.S.D.Vyas, for the respondents. DATE OF JUDGMENT : 24th JULY, 2008. JUDGMENT 1. Heard the learned counsel. 2. This petition is directed against the impugned order dtd.31.10.2007 whereby the learned trial Court rejected the application filed by the plaintiff under Section 10 C.P.C. seeking stay of subsequent suit filed by Vijay Pal Rampuriya along with two others, namely, Sunil Pal Rampuria and Sharad Pal Rampuriya in the SBCWP NO.518/2008 – ALLARAKH V/S THE ADJ (FAST TRACK) NO.3, BIKANER AND ORS. : JUDGMENT DATED 24.7.2008 2/6 Court of Dist. Judge, Bikaner seeking possession of property in question situated at Rampuria Bagechi, Dhobi Talai, Gali No.11, Bikaner. 3. The plaintiff submits that by the said application under Section 10 C.P.C. it was stated that that the suit filed by the plaintiffs for perpetual and permanent injunction was pending and being tried by the learned Civil Judge (J.D.), Bikaner, namely, Civil Suit No.8/1999. In the said suit, the defendant no.2 had already filed written statement and the counter claim claiming the same relief which was claimed in the said subsequent civil suit No.381/2005 and therefore, the subsequent suit was not maintainable and proceedings in the same deserved to be stayed in view of Section 10 C.P.C. 4. The learned counsel for the plaintiff – petitioner Mr. Manoj Bhandari submits that the learned trial Court has erred in rejecting the said application under Section 10 C.P.C. with cost of Rs.1000/-. Mr. Manoj Bhandari, the learned counsel for the petitioner has drawn the attention of the Court towards the written statement filed by the defendant Vijay Pal Rampuria, Annex.3 wherein the additional pleas and counter claim from para 10 to para 16 of the written statement SBCWP NO.518/2008 – ALLARAKH V/S THE ADJ (FAST TRACK) NO.3, BIKANER AND ORS. : JUDGMENT DATED 24.7.2008 3/6 indicates that same relief and with same plaint averments, subsequent suit was filed by the defendant Vijay Pal Rampuria along with two others. He has also submitted that the issues framed by the learned trial Court particularly issue No.3 vide Annex.2 in the said civil suit No.8/1999, burden of which has been kept on defendant No.1 is clearly to the effect that whether the defendant is entitled to secure possession by mandatory injunction from the plaintiff. He has also submitted that the subsequent suit was not maintainable. 5. On the side opposite, Mr. Anil Vyas on behalf of Mr.S.D.Vyas, learned counsel for the respondents has vehemently submitted that not only there are different parties in subsequent suit, namely, Sunil Rampuria and Sharad Rampuria, but also that in the impugned order itself, the learned trial Court while granting temporary injunction held that the defendant therein could not secure possession of the disputed premises without undertaking due process of law and the subsequent suit was that due process of law only and therefore, the present petitioner cannot object to the same. He submitted that the suit was of different nature and claimed different relief and therefore, the learned trial Court was justified in rejecting the application under SBCWP NO.518/2008 – ALLARAKH V/S THE ADJ (FAST TRACK) NO.3, BIKANER AND ORS. : JUDGMENT DATED 24.7.2008 4/6 Section 10 C.P.C., though he candidly admits that the suit property in question is same. 6. I have heard the learned counsel and given thoughtful consideration and perused both the plaints as well as the impugned order. 7. From the perusal of the plaints and comparative study, it appears that the subsequent suit involves substantially the same issue as involved in the present suit filed by the present petitioner – plaintiff. In the suit filed by the present petitioner – plaintiff, injunction is sought against the defendant Vijay Pal Rampuria that he may not dispossess the plaintiff from the said suit without undertaking due process of law. On the other hand, the same Vijay Pal Rampuria joining hands with two other plaintiffs claimed the relief of possession in the subsequent suit. The averments made in the additional pleas and the counter claim filed by the defendant Vijay Pal Rampuria in the civil suit No.8/99 are almost similar to the plaint averments made by the plaintiffs in the subsequent suit No.381/2005 filed by the plaintiffs, which is being tried by different court at the SBCWP NO.518/2008 – ALLARAKH V/S THE ADJ (FAST TRACK) NO.3, BIKANER AND ORS. : JUDGMENT DATED 24.7.2008 5/6 same place, namely, the court of learned Additional Dist. Judge (Fast Track) No.3, Bikaner. 8. The intention of Section 10 of the C.P.C. is clearly to avoid multiplicity of litigation for the same relief and the parties may not be allowed to pursue different suits and proceedings in different Courts entailing wastage of time of Courts and avoid possibility of contradictory judgments by different Courts or even by the same Court. That is why the provisions for stay of subsequent suit has been made. Section 10 C.P.C. clearly provides that 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 pending in the same or any other Court in India having jurisdiction to grant the relief claimed. 9. Since this Court has come to the conclusion that the issues involved in both the suits are substantially same so also the relief claimed by the parties on different poles of the same coin, the subsequent suit cannot be tried by the learned Additional Dist. Judge SBCWP NO.518/2008 – ALLARAKH V/S THE ADJ (FAST TRACK) NO.3, BIKANER AND ORS. : JUDGMENT DATED 24.7.2008 6/6 (Fast Track) No.3, Bikaner. In view of this, the impugned order passed by the learned Additional Dist. Judge (Fast Track) No.3, Bikaner dtd.31.10.2007 rejecting the application under Section 10 C.P.C. is found to be unsustainable and the same is quashed and set aside. The writ petition is accordingly allowed. The proceedings in Civil Suit No.381/2005 pending in the Court of learned Additional Dist. Judge (Fast Track) No.3, Bikaner shall remain stayed. No order as to costs. (Dr.VINEET KOTHARI)J. Item No.75 Ss/-