IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT W.P.NO.53827 OF 2018 (GM-CPC) BETWEEN:
MUNISWAMAIAH.N, S/O LATE NANJUNDAIAH, AGED ABOUT 38 YEARS, RESIDING AT # 1, 4TH E CROSS, RAJINI FARM, RAJESHWARI NAGARA, LAGGERE,
(BY SRI.M.N.RAGHU, ADVOCATE FOR C/R) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE RECORD IN O.S.NO.1567/2018 PENDING ON THE FILE OF XXIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU [CCH-33] AND SET ASIDE THE ORDER DTD:13.11.2018 ON I.A.NO.4 VIDE ANNEXURE-H AS THE SAME IS UNSUSTAINABLE IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R The petitioner being the defendant [who is mentioned to be the plaintiff] in O.S.No.1567/2018 filed by the respondent herein [who is wrongly described as defendant], is invoking the writ jurisdiction of this court for assailing the order dated 13.11.2018 made by learned XXIII Addl. City Civil Judge, Bangalore, whereby petitioner’s application in I.A.No.4 filed under Section 10 of CPC has been disfavoured. After service of notice, the respondent/plaintiff having entered caveat through his counsel, resists the Writ Petition.
2. Learned counsel for the petitioner argues that the claim covered in O.S.No.1567/2018 is the subject matter in C.C.No.27918/2016 filed under section 138 of Negotiable Instruments Act; in this connection, a Criminal Petition No.3523/2017 and Criminal Appeal No.1331/2018 respectively on the file of this Court and the Court of Sessions Judge, Bengaluru, have been pending; that being so, the suit proceedings ought to have been stayed till after the disposal of the said criminal cases; this having not been done, there is error apparent on the face of the record warranting indulgence of this Court.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this court declines to grant indulgence in the matter because:
(i) Ordinarily, for invocation of Section 10 of CPC, 1908, there need to be two suits which have same/similar subject matter; in special circumstances, Section 10 is invocable even when both the proceedings are not suits but they are civil proceedings; admittedly, in this case, there is a civil suit filed by the respondent and there is also a cheque bounce case under section 138 of N.I. Act; therefore, Section 10 of CPC going by its text does not avail to the petitioner; and, (ii) in Sarkar’s Code of Civil Procedure, 12th Edition, page 114, it is stated that as a principle of law, whenever a criminal case is instituted, the civil suit on the same cause of action need not be stayed. The Madhya Pradesh High Court in the Case of Nemi Chand Gangwal Vs.
Harish Kumar Jhanwar, (2001) 1 CCC 54 MP has held that the proceedings in a suit for the recover of money on the basis of a dishonored cheque, cannot be stayed merely because a criminal case under section 138 of N.I. Act has been instituted; to the same effect, the Calcutta High Court too has laid down the law in the Case of Steel Authority of India Ltd Vs. Pilani Investment & Industries Corporation Ltd, (2012) 4 ICC (Cal) 77.
In the above circumstances, this Writ Petition stands dismissed.
However, this order will not come in the way of petitioner taking up all defenses available to him in any way.
No costs.
Sd/- JUDGE cbc