ASIM KUMAR MONDAL,J. - (1.) THE instant revisional application under Article 227 of the Constitution of India is directed against the impugned order no. 56 dated 18th July, 2011 passed by the Ld. Civil Judge (Junior Division), 2nd Court, Jangipur, in O.S. no. 7 of 2009 along with other connected orders dated 14th July, 2010 and 24th August, 2010 passed by the same Ld. Court in the same suit. The case as made out by the petitioner/plaintiff is in short that the petitioner being plaintiff filed the suit being O.S. no. 7 of 2009 which is pending before Ld. Civil Judge (Junior Division), 2nd Court, Jangipur, for declaration and injunction over the suit property and has prayed in the said suit, inter alia, that for a declaration and of clauses of Bantan Nama dated 3rd August, 2008 made mutually by and between the parties cannot be ignored and denied by depriving the plaintiff/petitioner from the share of partnership business in the name and style M/s. Farakka Filling Centre Petrol Pump.
(2.) THE opposite party entered into appearance by filing written statement in the said suit and contested the same. The opposite party, long after filing of O.S. no. 7 of 2009, filed one suit being no. 60 of 2009 against the present petitioner/defendant which is pending before Ld. Civil Judge (Junior Division), 2nd Court, Jangipur. The prayer and the subject-matter of the suits are almost same relating to the title and interest over the business in the name and style M/s. Farakka Filling Centre Petrol Pump. Admittedly the suit being O.S. no. 60 of 2009 proceeded and advanced stage of hearing than the suit no. 7 of 2009 which was filed earlier. Ld. Court below passed an order dated 14th July, 2010 in O.S. no. 7 of 2009 fixing for analogous trial of both the suits in presence of Ld. Advocates for the parties. The defendant in the said suit on the day files a petition for stay of further proceeding. Copy served and no objection was raised. The matter was heard in the Ld. Court below on 24th August, 2010. Ld. Court below has been pleased to allow the prayer of the defendant and stayed the further hearing of the suit being O.S. no. 7 of 2009 till the O.S. no. 60 of 2009 comes up at the stage of hearing. Against the said order the petitioner filed a petition under Section 151 of C.P.C. praying for consideration of the said order which was heard and rejected by the Ld. Court below. Against the said order the petitioner has come up before this Court for setting aside the order and for hearing of the suits in accordance with their stage separately. Being aggrieved and dissatisfied with the said order the present revisional application has been filed on the grounds that Ld. Trial Judge has passed the order without applying the mind and misinterpret the statute, and the same is liable to be set aside. Further Ld. Court below has erred in law as well as in fact in passing the impugned order of rejection of the petition. Further that the Ld. Court below has failed to appreciate that the first suit being O.S. no. 7 of 2009 is filed prior to the suit being O.S. no. 60 of 2009 and parties of both the suits are the same and matter of both the suits are also same and relief claimed against each other are same in nature and for that Section 10 of C.P.C. is properly applicable in the instant case and for that the later suit must be stayed rather than allowing analogous hearing together with the prior suit.
(3.) THIS Court, upon the facts and circumstances of the case, has made out in the petition under Section 227 of the Constitution of India is to adjudicate as to whether the order impugned suffers from any illegality or impropriety. It appears from the submissions of Ld. Advocate for the petitioner as well as from the photocopy documents annexed herewith that both the suits by and between the parties are almost the same subject-matter with a relief of same nature. It is also admitted position that O.S. suit no. 7 of 2009 instituted earlier than the O.S. no. 60 of 2009. The petition under Section 151 C.P.C. filed by the present petitioner before the Ld. Court below with a prayer for proceeding of hearing of the O.S. no. 7 of 2009 keeping the O.S. no. 60 of 2009 be stayed is denied and rejected by the Ld. Court below simply on the ground that the order for analogous trial was not challenged before any Appellate Court. Ld. Court below did not consider the applicability of provision under Section 10 of C.P.C. The Section 10 of the C.P.C. runs as follows : "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 were such suit is pending in the same or any other Court having jurisdiction to grant relief claim or any Court beyond the list established, or continued by the Central Government and lack jurisdiction or before lack jurisdiction." ;