Sunil Kumar and Others vs Kashmiri Lal

L.N. Mittal, J.—Defendants Sunil Kumar etc. have filed this revision petition under Article 227 of the Constitution of India impugning order dated 6.4.2012 Annexure P/5 passed by the trial court thereby disposing application Annexure P/3 filed by defendants u/s 10 of the CPC (in short, CPC) for stay of the suit which has been instituted by Kashmiri Lal vide plaint Annexure P/2. Defendants alleged in their application Annexure P/3 that suit filed by them as well as counter claim made therein by the present plaintiff relating to the subject matter was pending in civil court and therefore, instant suit was liable to be stayed u/s 10 CPC.

Plaintiff by filing reply Annexure P/4 controverted averments of the defendants and denied that the suit pending at Patiala was regarding the same subject matter. It was pleaded that prayer in the aforesaid suit and counter claim is different.

Learned trial court vide order Annexure P/5 disposed of the defendants'' application filed u/s 10 CPC and framed issues in the suit. Feeling aggrieved, defendants have filed this revision petition.

I have heard counsel for the parties and perused the case file.

Operative part of impugned order Annexure P/5 whereby application Annexure P/3 filed u/s 10 CPC was disposed of, is reproduced here in under:-

Plaintiff Kashmiri Lal suffered statement that he has filed appeal against the judgment and decree dt. 17.2.2012 which is pending in the court of Ld. District & Sessions Judge, Patiala. Hence, application u/o 10 CPC disposed of.

A bare perusal of the aforesaid order reveals that the trial court has not applied its mind at all and the order is most unreasoned, sketchy and cryptic, without any discussion whatsoever. It may be added that if appeal in the previous suit was pending, that could be a ground for allowing application u/s 10 CPC and not for dismissing it. The question to be determined for adjudication of application u/s 10 CPC is regarding the requirements of section 10 CPC being satisfied or not. However, the trial court has not recorded any finding in this regard.

It is, thus, manifest that impugned order of the trial court thereby disposing of (in fact dismissing) application u/s 10 CPC is completely perverse and illegal and suffers from jurisdictional error and the matter requires to be remitted to the trial court for fresh adjudication in accordance with law. Resultantly, the instant revision petition is allowed. Impugned order Annexure P/5 to the extent of disposing of application Annexure P/3 u/s 10 CPC is set aside and the matter is remitted to the trial court for fresh decision on application Annexure P/3 in accordance with law. The application shall be decided by the trial court before proceeding further with the suit.