Neutral Citation No. - 2025:AHC-LKO:28361 Reserved Court No. - 6 Case :- MATTERS UNDER ARTICLE 227 No. - 24688 of 2021 Petitioner :- Gauri Shankar Respondent :- Addl.District And Sessions Judge-Iii Balrampur And Ors. Counsel for Petitioner :- Madhur Kant Srivastava,Neeti Singh Counsel for Respondent :- Piyush Kumar Singh, Rahul Mishra Hon'ble Pankaj Bhatia,J. 1. Heard the counsel for the petitioner. No one appears for the respondents. 2. The present petition has been filed challenging the order dated 07.03.2011 passed in Regular Suit No.525 of 2000 whereby the Suit was stayed on an application filed under Section 10 of the CPC as well as the order dated 24.10.2019 whereby the revision preferred against the order dated 07.03.2011 was dismissed. 3. The facts, in brief, are that a Suit was filed for cancellation of the Will Deed being Suit No.304 of 1988. In the said Suit, the petitioner had put in appearance as a defendant and also filed a counter claim stating that the petitioner has taken possession on a part of the property and, as such, the counter claim was moved for removal of the possession. The said Suit No.304 of 1988 was decreed on 09.04.2013. Against the said order, the First Appeal no.36 of 2013 came to be filed which was allowed, however the counter claim of the petitioner, which was decreed, was set aside in the appellate court on account of non-payment of court fees vide order dated 10.10.2014. Second Appeal against the judgment of appellate court is pending. 4. Subsequently, a fresh Suit came to be filed at Balrampur which was registered as Suit No.525 of 2000. In the said Suit (Annexure no.17), a prayer was made for directing the defendant to vacate the possession on a part of the property which was unauthorizedly occupied. In the said Suit, a plea was taken that the second suit cannot proceed in view of the Bar under section 10 of the CPC and for the same cause of action, a suit was pending being Suit No.304 of 1988, as such, the second suit was barred by Section 10 of CPC. A specific issue was framed by the trial court and the Suit was stayed vide order dated 07.03.2011. It was further prescribed that the Suit No.525 of 2000 shall remain stayed till the disposal of the Suit No.304 of 1988. Challenging the said order, a revision was preferred which too was dismissed on 24.10.2019. 5. The contention of the counsel for the petitioner is that when the counter claim preferred by the petitioner was subsequently rejected on account of non-payment of court fees, the second suit could not be barred. Reliance is placed upon the judgment of the Supreme Court in the case of Aspi Jal and another vs. Khushroo Rustom Dadyburjor; 2013 (31) LCD 1158 an National Institute of Mental Health and Neuro Sciences vs. C. Parameshwara; AIR 2005 SC 242. 6. Considering the fact that on the date of passing of the order dated 07.03.2011, the Suit No.304 of 1988 was pending in which, in fact a relief was also claimed by the petitioner, as such, on a plain reading of Section 10 CPC, in view of the pendency of the Suit in between the same parties in respect of same cause of action and for same relief, the second Suit could not proceed. Even if the contention of the counsel for the petitioner is accepted that the relief claimed in the counter claim in the first Suit was barred by jurisdiction, the second Suit would still not lie as, the counter claim in the first Suit was never withdrawn. 7. For all the reasons recorded above, no interference is called for. 8. The writ petition lacks merit and is dismissed. Order Date :- 15.5.2025 VNP/- Digitally signed by :- VISHVANATH PRASAD SHUKLA High Court of Judicature at Allahabad, Lucknow Bench