CMPMO/327/2022 on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No. 327 of 2022

Reserved on :21.12.2022

Decided on: 30.12.2022 Durga Dutt

.…Petitioner.

Versus

Lok Prakash

…Respondent

Coram

The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 Yes

For the petitioner : Mr. Parikshit Sharma, Advocate

For the respondent

:Nemo

Satyen Vaidya, Judge

By way of instant petition, petitioner has assailed order dated 07.01.2022, passed by learned Senior Civil Judge, Kasauli in Civil Suit No. 385/1 of 2018, whereby application of the defendant in said suit filed under Section 10 of the Code of Civil Procedure has been allowed.

Whether reporters of the local papers may be allowed to see the judgment?

2. Petitioner herein had filed a Civil Suit No. 108/1 of 2012 in the Court of learned Senior Civil Judge, Kasauli in which Sh. Dharam Dutt was one of the defendant. The suit was subsequently withdrawn, however, a counter claim filed by Sh. Dharam Dutt in the said suit and registered as Counter Claim No. 42/1 of 2015 is still continuing. Sh. Dharam Dutt is father of respondent herein. In Counter Claim No. 42/1 of 2015, Sh. Dharam Dutt is represented by respondent herein as his General Attorney.

3. Petitioner herein has filed another suit being No. 385-1 of 2018, titled Durga Dutt Vs. Lok Prakash, which is pending before learned Senior Civil Judge, Kasauli. Respondent herein is defendant in Civil Suit No. 385-1 of 2018. An application under Section 10 of the Code of Civil Procedure came to be filed in Civil Suit No. 385-1 of 2018 by respondent herein on the premise that the said Civil Suit was liable to be stayed in view of pendency of Counter Claim No. 42-1 of 2015.

4. Learned Senior Civil Judge has allowed the application of respondent herein vide impugned order and has ordered the Civil Suit No. 385-1 of 2018 to be stayed.

5. I have heard learned counsel for the parties and have also gone through the records of the case carefully.

6. One of the mandatorily requirements for application of Section 10 of the Code of Civil Procedure is that both the suits should be between the same parties or the parties litigating under the same title. Admittedly, the Counter Claim No. 42-1 of 2015 has been filed by Sh. Dharam Dutt, who is father of respondent herein and in Civil Suit No. 385- 1 of 2018, Sh. Dharam Dutt is not a party, rather, his son Sh. Lok Prakash i.e respondent herein is the defendant. Respondent herein is representing his father in Counter Claim No. 42-1 of 2015 only as his General Attorney. It being so, it cannot be said that the respondent herein is litigating in both the litigations under the same title. In Counter Claim No.

42-1 of 2015 respondent herein has not claimed any right in the property involved therein for himself, whereas in the Civil Suit No. 385-1 of 2018, he has claimed possession over the land comprised in Khasra Nos. 238 and 239 in his own right. Thus, the necessary ingredient for application of Section 10 of the Code of Civil Procedure is clearly missing in the case and learned Senior Civil Judge, Kasauli has erred in passing the impugned order.

7. Without entering into the question regarding involvement of issues under both the litigations being directly and substantially the same, the instant petition is being disposed of only on the ground that Section 10 of the Code of Civil Procedure will not be applicable as the parties in both the litigations are different.

8. In view of above discussion, the petition is allowed. Order dated 07.01.2022, passed by learned Senior Civil Judge, Kasauli in Civil Suit No. 385/1 of 2018 is set-aside.

Pending miscellaneous application(s), if any, shall also stand disposed of.

(Satyen Vaidya) 30th December, 2022

Judge (sushma)