Manika Kundu vs Subhash Kundu

Procedure. It is next submitted that the impugned order dated 05.02.2019 is not sustainable in law and ought to be set aside. It is lastly submitted that the prayer as prayed for in this Civil Miscellaneous Petition be allowed.

Learned counsel appearing for the opposite party on the other hand vehemently opposes the prayer of the petitioner made in this Civil Miscellaneous Petition and submits that not a word has been whispered by the petitioner as to in what manner, the impugned order so far as it relates to the prayer confined in the Writ Petition vide the order dated 20.09.2019 in W.P(C) No. 2627 of 2019, as there is absolutely no illegality in the said order. Hence, it is submitted that this Civil Miscellaneous Petition, being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, this Court finds that not even a word has been whispered in the Writ Petition which has later on been converted to this civil miscellaneous petition; except that the impugned order is wholly un-sustainable in the eyes of law and ought to be set aside. The words “wholly un-sustainable in the eyes of law “certainly are the common words used in many petition filed in court challenging any order; which are generic in nature but what is required in a judicial proceeding is that there must be specific contention as to how the order concerned is un-sustainable in law.

Be that as it may; the fact remains that the petitioner has not filed her written statement in Original Suit No. 559 of 2018. The object and purpose of Section 10 of the Code of Civil Procedure is that common matters in issue in two Suits ordinarily be decided in a previously instituted Suit. The basic purpose of Section 10 of the Code of Civil Procedure is to protect a person from multiplicity of proceeding as well as applicability of the principles of res judicata. The requirement of Section 10 of the Code of Civil Procedure, therefore, is that the matters in issue in both the suits should be directly and substantially in issue in the previously instituted suit between the same parties or under whom they are litigating.

Now since the petitioner has not filed the written statement in Original Suit No. 559 of 2018, obviously there is no scope of framing of any issue. So, under such circumstances, not a word has been whispered in the Writ Petition which has, later on, been converted to Civil Miscellaneous Petition; as to in what manner, the impugned order dated 05.02.2019 suffers from any illegality. Under such facts and circumstances of this case, this Court is of the considered view that there is no justification to interfere with the impugned order dated 05.02.2019 in exercise of its power under Section 227 of the Constitution of India.

Accordingly, this Civil Miscellaneous Petition, being without any merit, is dismissed.

In view of disposal of this Civil Miscellaneous Petition, the interim relief granted earlier vide order dated 20^th September, 2019 is vacated. (Anil Kumar Choudhary, J.)