Neutral Citation No. - 2025:AHC:35629 Court No. - 9 Case :- MATTERS UNDER ARTICLE 227 No. - 4529 of 2017 Petitioner :- Smt. Kulsoom Fatma And Another Respondent :- Azmatullah And 3 Others Counsel for Petitioner :- Arvind Srivastava,Mukhtar Alam Counsel for Respondent :- Anup Swaroop Srivastava Hon'ble Rohit Ranjan Agarwal,J. 1. This is defendants' petition. Earlier, the plaintiff respondents alongwith their mother Smt. Khursida Begum had instituted the Original Suit No. 83 of 2009 before the Civil Judge (Senior Division), Nainital at Uttarakhand against one Anil Kumar Goyal and the present defendant petitioners. The said suit was for arrears of rent and eviction. 2. Initially, initiation of suit was before the Judge, Small Causes Court but the plaint was returned to be presented before the competent court on 21.11.2007. The suit was on the regular side after framing of the following issues; "1. क्यया वयाददीगण वयादपत्र मम वरणरत तथ्ययों कके आधयार पर रववयारदत सम्पतत्ति कके स्वयामदी हह ? यरद हयाहाँ ततो प्रभयाव? 2. क्यया वयाददीगण वयादपत्र मम वरणरत तथ्ययों कके आधयार पर प्ररतवयाददी ससंख्यया -01 कतो रववयारदत सम्पतत्ति सके बकेदखल करयानके कके अतधकयारदी हह? यरद हयाहाँ ततो प्रभयाव। 3. क्यया वयाददीगण वयादपत्र मम वरणरत तथ्ययों कके आधयार पर प्ररतवयाददी ससंख्यया -01 सके मम0 44,300/- रूपयके बकयायया रकरयायया, क्षरतपपूरतर व नतोरटिस खरर प्रयाप्त करनके कके अतधकयारदी हह? यरद हयाहाँ ततो रकस दर सके। 4. क्यया वयाददीगण प्ररतवयाददी ससं0-01 सके रववयारदत सम्पतत्ति कके सम्बन्ध मम वयासलयात प्रयाप्त करनके कके अतधकयारदी हह? यरद हयाहाँ ततो रकस दर सके। 5. क्यया वयाददीगण दयारया वतरमयान वयाद प्ररतवयाददीगण कके रवरूद्ध रबनया रकसदी वयाद कयारण कके दयायर रकयया गयया हह? यरद हयाहाँ ततो प्रभयाव। 6. क्यया वयाददीगण दयारया वतरमयान वयाद रबनया रकसदी अतधकयार कके दयायर रकयया गयया हह ? यरद हयाहाँ ततो प्रभयाव। 7. अनमततोष ।" 3. Issue no. 1 was in regard to the ownership of the property. The said issue was decided alongwith the suit on 27.09.2012 against the plaintiff respondents. Against the judgment of trial court the plaintiff respondents preferred Civil Appeal No. 52 of 2012 before the District Judge, Nainital which was transferred to the Court of Additional District Judge-I, Nainital and the same was dismissed on 27.04.2016. Against the said judgment a second appeal No. 88 of 2016 was filed before the High Court of Uttarakhand at Nainital which is still pending. During pendency of second appeal, plaintiff respondents had filed the Original Suit No. 251 of 2015 before the Civil Judge (Senior Division), Bijnor against the defendant petitioners for getting the Will deed dated 21.05.2001 cancelled. During pendency of subsequent suit instituted by plaintiff respondents an application under Section 10 CPC was filed by defendant petitioners which has been rejected on 03.09.2016, against which a civil revision No. 57 of 2016 was preferred which was dismissed on 22.04.2017. Hence, present writ petition. 4. Section 10 CPC governs the field with regard to the stay of subsequent suit instituted by a party wherein subject matter of dispute is the same between the parties and the suit which is filed subsequently is stayed. Section 10 CPC is extracted hereasunder; "10. Stay of Suit - 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 is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation.--The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action." 5. Learned counsel for petitioners has emphasized that the second suit could not proceed till the second appeal filed before the High Court of Uttarakhand is decided. 6. From reading of Section 10 CPC, it is clear that there is a bar in regard to proceeding of a subsequent suit initiated between the same party in respect of same property in dispute. Once it is an admitted fact that earlier Suit No. 83 of 2009 filed by plaintiff respondents was dismissed in the year 2012 and thereafter the matter was carried in through civil appeal filed under Section 96 CPC has also been dismissed, the benefit, as claimed by defendant petitioners, under Section 10 CPC cannot be granted. 7. Both the courts below had recorded a categorical finding that the application filed under Section 10 CPC is not maintainable in view of the fact as earlier suit filed by plaintiff respondents has already been attained finality and appeal against the same has been dismissed, there is no bar as far as proceedings of subsequent suit is concerned. Petitioners have a remedy of filing application under Order VII Rule 11 CPC or raising the question as to the bar of subsequent suit under Order II Rule 2 CPC. 8. In view of the aforesaid facts, no interference is required with the order impugned. Writ petition fails and is hereby dismissed. However, it is open to the petitioners to challenge the proceedings by moving necessary application as provided in the Civil Procedure Code, 1908. Order Date :- 11.3.2025 Shekhar Digitally signed by :- SHASHI SHEKHAR PANDEY High Court of Judicature at Allahabad