DOMINGOS FELICIO DIAS Vs. AMIT NARAYAN PAI

JUDGEMENT

(1.) On 4th October, 2017 a notice for final disposal was issued in this case. I have heard Shri Zaveri, the learned counsel for the petitioner and Shri Shivan Desai, the learned counsel for the respondent and the petition is being disposed of finally by consent of parties.

(2.) By this petition under Article 227 of the Constitution of India the petitioner is challenging the order dated 12/9/2017 (below Exhibit D-31) passed by the learned Ad hoc Senior Civil Judge at Panaji in Regular Civil Suit No.104/2009/B (New) (Old Special Civil Suit No.54/2009/B). By the impugned order, an application filed by the petitioner (plaintiff) for "revival of the suit" has been dismissed. The said suit was stayed by the learned trial court by an order dated 18/12/2010 in view of the pendency of an earlier instituted suit between the parties. The said earlier suit being Special Civil Suit No.82/2008/B has been decreed on 25/5/2015. Indisputably the petitioner has challenged the said judgment and decree passed in Special Civil Suit No.82/2008/B before the learned District Judge in Regular Civil Appeal No.78/2015 which is pending. By "revival of the suit", the petitioner means that the order of stay of R.C.S. No.104/2009/B under section 10 of C.P.C be recalled and the suit be proceeded with.

(3.) At the outset it is necessary to mention that in the present petition, the petitioner has also challenged the original order of stay passed on 18/12/2010. However, on 4/10/2017, the learned counsel for the petitioner has not pressed the said prayer and thus the only challenge is to the order dated 12/9/2017 by which the learned trial court has refused to "revive the suit". The learned trial court has held that the appeal is a continuation of the suit and once the petitioner has chosen to challenge the judgment and decree passed in the earlier suit, namely, Special Civil Suit No.82/2008/B, the Regular Civil Suit No.104/2009 cannot be proceeded with. In short, the learned trial court has held that the stay of the suit under section 10 of the Code of Civil Procedure 1908 (C.P.C, for short) would continue even where the earlier suit has been decided and the matter is pending in appeal.