1. The petitioner is alleged to have married the respondent in 1993. The petitioner filed RCS No. 160 of 1994 on the file of the V Senior Divisional Civil Judge, Bharuch, Gujarat State, against the respondent for declaration that there was no marriage between them, on 4-4-1994. Thereafter, on 25-6-1994 the respondent filed O.P No. 24 of 1994 on the files of the Additional Subordinate Judge, Srikakulam, for restitution of conjugal rights, under Hindu Marriage Act. The petitioner filed I.A No. 173 of 1994 in O.P 24/94 under Section 10 of Code of Civil Procedure (for short, ‘the Code’) for stay of trial of O.P No. 24 of 1994, pending the trial in RCS No. 160 of 1994, on the ground that the suit was instituted earlier to the O.P and the matter in O.P No. 24 of 1994 is directly and substantially in issue in the suit and the trial of the O.P should therefore be stayed. The learned Subordinate Judge dismissed the I.A No. 173/94 on the ground that Section 10 of the Code is not attracted to the facts of the case, inasmuch as the decree under Sections 9 and 13 of Hindu Marriage Act is not a decree within the meaning of Section 2(2) of the Code and the Civil Court has not jurisdiction to entertain the matter arising under the Hindu Marriage Act, which has to be decided by the Special Judge constituted under the Hindu Marriage Act. Questioning the said order this C.R.P has been filed.
2. It is contended by the counsel for the petitioner that the matters in both the proceedings, directly and substantially in issue, are the same and under Section 10 of the Code the subsequent matter i.e O.P No. 24/94, has to be stayed and that the consideration whether the subsequent proceeding was a civil proceeding in a Civil Court or not, was not germane for the exercise of power under Section 10 of the Code.
3. The issue to be decided in RCS No. 160 of 1994 filed by the petitioner is whether there was valid marriage between the parties or not. In O.P No. 24 of 1994 filed by the respondent-wife for restitution of conjugal rights, the plea of the petitioner-husband is that there was no marriage between them and no decree can be granted in the said O.P It is therefore, seen that in both the matters the issue is validity of marriage which is directly and substantially in issue. Section 10 of the Code reads as follows:
“S. 10 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,… … … …”
4. Therefore, the trial in O.P 24/94, which was filed subsequent to RCS No. 160 of 1994 shall be stayed, pending the trial of RCS No. 160/94. However, Sri Gangaiah Naidu, learned counsel for the respondent contends that Section 10 of the Code does not apply to the facts of the O.P, because the proceedings in O.P No. 24 of 1994 is not a civil proceeding and the decree in the said O.P 24/94 filed under Hindu Marriage Act, cannot be a decree within the meaning of Section 2(2) of the Code and that Section 10 of the Code is applicable only when both the proceedings are in the nature of civil suits. The Supreme Court in P.V Shetty v. B.S Giridhar - (1) (1982) 3 SCC 403 : AIR 1982 SC 83 held that the suit filed by the landlord for eviction on the allegation that the tenancy of the tenant was determined and that he was not entitled for protection under Karnataka Rent Control Act, 1961, has to be stayed pending the trial of the application filed prior to the filing of the suit, for fixation of fair rent before the Rent Controller. It is evident that in both the proceedings the matter in issue is the same. But it is significant to note that though the proceedings before the Rent Controller are not proceedings before a Civil Court, the provision of Section 10 of the Code was held applicable. The Supreme Court held that is was just and fair, balancing equities, to stay the suit till the application for fixation of fair rent is disposed of. This Court is Bhaskar Reddy v. Dharamkaran Reddy - (2) APLJ 1969 (1) 102 Short notes applying the provisions of Section 10 of the Code, has stayed the proceedings in the suit filed for declaration of title and possession, pending disposal of the earlier application before the Tenancy Court under Section 50(B) of Hyderabad Agricultural Lands and Tenancy Act. This Court held.
“No doubt Section 10 CPC in terms, does not apply because the proceedings before the Tahsildar is not a suit. But that does not and shall not deter the Court from passing appropriate orders, including stay of the suit, provided it is in the best interest of the justice. … …”
5. It is-therefore, clear that the question to be seen, in these matters is whether the issue to be decided in both the proceedings is substantially the same.
6. In view of the above decisions, I am of the view that the subsequent O.P filed by the respondent under the Hindu Marriage Act, though a special enactment and is to be tried by a Special Court, cannot be proceeded with pending the earlier suit, where the matter in issue is substantially the same.
7. Learned counsel for the respondent cited Smt. Balwant Kunwar v. Addl. Munsiff, Dehra Dun - (3) AIR 1959 All. 7; Bhimsen Saxena v. Brijnandan Bajpai - (4) AIR 1959 M.P 401 and Shaw Wallace & Co. v. Bholanath - (5) AIR 1975 Cal. 411, to support his contention that the Special Court, which is trying the O.P 24/94 filed under Hindu Marriage Act, is not a Civil Court and therefore the provision of Section 10 of the Code is not applicable. This aspect cannot assume much importance in view of the decision of the Supreme Court in P.V Shetty v. B.S Giridhar (1 Supra) and the decision of this Court in Bhaskar Reddy Case (2 Supra).
8. Lastly it is contended by the counsel for the respondent that when the wife filed transfer petition No. 82/95 before the Supreme Court for transfer of the RCS from Bharuch to Srikakulam to be tried along with O.P No. 24 of 1994, the petitioner has taken a stand that both the suits are different and the matter in issue is not the same, and therefore he could not be allowed to plead hot and cold. The order of the Supreme Court in Transfer Petition No. 82/95 reads, “the transfer petition is dismissed at this stage”. From this order I cannot say for what reasons it has been dismissed. However, it is not necessary for disposal of the present case to go into this aspect of the matter. The only question before me is whether Section 10 of the Code is applicable to the facts of the case.
9. For the reasons stated above, the C.R.P is allowed and the order in I.A No. 173 of 1994 in O.P 24/94 on the file of the Addl. Subordinate Judge, Srikakulam, is set aside and the trial of the said O.P No. 24/94 shall be stayed pending the trial is RCs. No. 160/94 on the file of the V Senior Divisional Civil Judge, Bharuch. In the circumstances. No costs.