j-wp-7015-16

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7015 OF 2016

Siddharth N. Banthia .. Petitioner
vs.
Smt. Smitha S. Banthia .. Respondent

Mr. R.D.Soni i/b. M/s. Ram Co. for the Petitioner.
None for the Respondent.

CORAM : M. S. SONAK, J.

Date of Reserving the Judgment : 8th December 2017.
Date of Pronouncing the Judgment: 14th December 2017.

JUDGEMENT:-

1] Heard Mr. Soni, learned counsel for the petitioner.

2] The petitioner-husband challenges the order dated 4 th

June 2016 made by the Family Court, Pune rejecting the

petitioner’s application under Section 10 read with Section

151 of the Code of Civil Procedure, 1908 (CPC) to stay the

proceedings, i.e., Petition No. 84 of 2012, in which, the

respondent – wife, has applied for declaration that her

marriage with the petitioner is null and void.

3] The petitioner, applied for stay of proceedings in the

civil suit on the ground that the respondent-wife has initiated

criminal proceedings alleging that the petitioner has

DSS page 1 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

committed offences under sections 420, 406, 467, 471, 474,

376, 323, 504, 506(1) and 494 of the Indian Penal Code,

1860 (IPC) and such proceedings are pending in the Sessions

Court, Pune.

4] Mr. Soni, learned counsel for the petitioner, submits

that unless the civil proceedings are stayed, the petitioner,

will face sever embarrassment in the criminal proceedings

before the Sessions Court. Mr. Soni submits that complicated

questions of law and fact are involved in both the matters and

therefore, applying the law laid down by the Supreme Court

in case of M.S. Sheriff and anr. vs. State of Madras and ors.

reported in AIR 1954 S.C. 397, the civil proceedings must be

stayed. Mr. Soni submits that in criminal proceedings, the

petitioner is not obliged to disclose his defence. If, the

petitioner is obliged to disclose his defence in the civil

proceedings, valuable constitutional rights available to the

petitioner in the criminal proceedings will be denied to the

petitioner.

5] Mr. Soni relies on the decisions of this Court in Arvind

K. Wadodkar vs. Ramdas D. Joshi reported in (1996) 2

DSS page 2 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

MHLJ 907 and Ramanand N. Ladda vs. Kacharulal A.

Lodha reported in 1998 (2) MHLJ 112, to submit that if

simultaneous prosecution of civil and criminal proceedings

would embarrass the defendant, then civil suit is required to

be stayed. Mr. Soni submits that since all such principles have

been ignored by the Family Court, this is a clear case of

failure to exercise jurisdiction. Mr. Soni submits that the

impugned order therefore, warrants interference under

Article 227 of the Constitution of India.

6] In the present case, there is no clear material to

establish that the civil proceedings and the criminal

proceedings arise out of identical set of facts. No doubt, there

is bound to be some overlap. But that by itself, is never

sufficient to stay the civil proceedings. This is because scope

of two proceedings is substantially different. The standard of

proof required in the two proceedings are entirely different.

Civil cases are decided on the basis of preponderance of

probabilities while in criminal case, the prosecution is

required to prove the case beyond reasonable doubt. There is

neither any statutory provision nor any legal principle that

the findings recorded in one proceedings may be treated as

DSS page 3 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

final or binding in the other, as both the cases have to be

decided on the basis of the evidence adduced therein. (See:

Iqbal Singh Marwah vs. Meenakshi Marwah – AIR 2005

Supreme Court 2119)

7] The record indicates that the chargesheet in the

criminal proceedings was served on the petitioner on 6 th

January 2016. Thereafter, on 28th January 2016, the

petitioner has already filed his written statement in the civil

proceedings, wherein, he has not only denied the allegations

in the plaint/petition, but further disclosed his defence. In the

civil proceedings, even issues came to be framed and the

application seeking stay of the civil proceedings was moved

by the petitioner at the stage when the respondent-wife had

concluded her examination-in-chief and the petitioner was

called upon to cross-examine her, in case, he was desirous to

do so. This is therefore, not a case where the petitioner is yet

to disclose his defence or a case where disclosure of defence

in the civil proceedings might affect the petitioner’s right to

remain silent in the criminal proceedings.

DSS page 4 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

8] In State of Rajasthan vs. Kalyan Sundaram Cement

Industries Ltd. and ors. reported in (1996) 3 SCC 87, the

Supreme Court, was examining the validity of the order, by

which, Rajasthan High Court had stayed the proceedings in

civil suits pending disposal of criminal cases under section

138 of Negotiable Instruments Act, 1881 and section 420 of

IPC. The Supreme Court held that it is settled law that

pendency of criminal matters would not be any impediment

to proceed with the civil suits. The criminal court would deal

with the offence punishable under the Act. The Supreme

Court also held that the High Court proceeded on a wrong

premise that the accused would be expected to disclose their

defence in the criminal case by asking them to proceed with

the trial of the suit. The Supreme Court held that this is not a

correct principle of law and even otherwise, it no longer

subsists, since many of the defendants in the civil suit have

already filed their defences in the civil suit.

9] In Asok Kumar Pal vs. Smt. Sawan Pal reported in

(2008) 3 CALLT 437, learned Single Judge of the Calcutta

High Court relying upon Kalyan Sundaram Cement Industries

Ltd. (supra) refused to stay matrimonial proceedings on the

DSS page 5 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

ground of pendency of criminal proceedings arising out of

similar set of facts. In the case before Calcutta High Court,

divorce was applied for by the wife on the ground of cruelty.

Similarly, cruelty was also the foundation in the complaint

before the criminal court. However, applying the principle in

Kalyan Sundaram Cement Industries Ltd. (supra), the Calcutta

High Court held that mere fact that the two proceedings are

founded on the same set of facts, is not sufficient for stay of

the civil proceedings in all cases. It was observed that even

the concept of cruelty under the Indian Penal Code is not

identical to the concept under the Hindu Marriage Act. It was

held that the husband has already disclosed his defence in the

civil suit and it cannot be reasonably expected that a different

stand will be taken by him in the criminal proceedings. The

Calcutta High Court also took note of the circumstances that

scope of enquiry and standard or proof in the civil and

criminal proceedings are quite different. On basis of all such

considerations, the Calcutta High Court declined the stay on

the civil proceedings.

10] The principle in the aforesaid decisions of the Supreme

Court and the Calcutta High Court will govern the present

DSS page 6 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

case as well. As noted earlier, this is not a case of the two

proceedings being founded on identical set of facts. In any

case, there is no question of any embarrassment to the

petitioner in the criminal trial, because, the petitioner, even

after he was served with the chargesheet in the criminal

proceedings has already filed his written statement in the civil

proceedings and disclosed his defence. This is also not a case

involving complicated issues with law and fact, so as to

embarrass the trial in either of the proceedings. As noted

earlier, the scope of the two proceedings is quite different.

Even the principles, by which, the evidence is to be assessed

in the two proceedings are quite different. Thus construed,

there is really no infirmity in the impugned order made by the

Family Court. The impugned order neither amounts to failure

to exercise jurisdiction nor can it be said that the view taken

by the Family Court suffers from any jurisdictional error so as

to warrant interference under section 227 of the Constitution

of India.

11] Even M.S. Sheriff (supra) the Supreme Court has held

that civil and criminal matters can simultaneously proceed

unless it is established that there is likelihood of

DSS page 7 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

embarrassment. Then again, there is no hard and fast rule in

this regard. Special considerations obtaining in any particular

case might make some other course more expedient and just.

For example, the civil case or the other criminal proceeding

may be so near its end as to make it inexpedient to stay it in

order to give precedence to prosecution.

12] In the present case, there is no clarity as to whether the

charge has been framed against the petitioner in the criminal

proceedings. In contrast, trial in the civil proceedings has

already commenced. The petitioner, as noted earlier, has

already disclosed his defence by filing written statement on

28th January 2016. Although, there is no much discussion in

Arvind Wadodkar (supra), from the statement of facts it is

quite clear that the defendant in the civil suit for damages on

the ground of defamation was yet to file his defence. In these

circumstances, learned Single Judge of this Court held that

there might be an embarrassment to the defendant in the

criminal trial, where, the defendant, was not even bound to

disclose his defence.

DSS page 8 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

13] It must be noted that Arvind Wadodkar (supra) was

decided on 5th September 1996 and it is possible that on the

said date the decision of the Supreme Court in Kalyan

Sundaram Cement Industries Ltd. (supra), though delivered on

12th February 1996, might not have been reported. Learned

Single Judge of this Court, therefore, did not possibly have

the benefit of decision of the Supreme Court in Kalyan

Sundaram Cement Industries Ltd. (supra). The judgment of the

Supreme Court was not cited before the learned Single Judge.

14] Ramanand Ladda (supra) also entirely relies on Arvind

Wadodkar (supra). Again, even this decision, makes no

reference to ruling of the Supreme Court in Kalyan Sundaram

Cement Industries Ltd. (supra). In any case, the decisions in

Arvind Wadodkar (supra) and Ramanand Ladda (supra) turn

on their own facts. The facts and circumstances in the present

case are similar to the facts obtaining in Asok Kumar Pal

(supra) , which, in turn, relies upon the decision of the

Supreme Court in Kalyan Sundaram Cement Industries Ltd.

(supra). Therefore, applying the principles in the said two

DSS page 9 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

decisions, there is really no case made out to interfere with

the impugned order.

15] The petitioner in the present case had applied for a stay

in the civil proceedings by invoking the provisions of Sections

10 and 151 of the CPC. The provisions of Section 10 of CPC

are inapplicable to the facts and circumstances of the present

case. This is not a case of two courts of concurrent jurisdiction

trying two parallel suits in respect of the same matter in issue.

16] In National Institute of Mental Health and Neuro

Sciences vs. C. Parameshwara reported in 2005(2) SCC

256, the Supreme Court has held that the object underlying

section 10 is to prevent courts of concurrent jurisdiction from

simultaneously trying two parallel suits in respect of same

matter in issue. The object underlying section 10 is to avoid

two parallel trials on the same issue by two courts and to

avoid recording of conflicting findings on issues which are

directly and substantially in issue in previously instituted suit.

The language of section 10 suggests that it is referable to a

suit instituted in the civil court and it cannot apply to the

proceedings of other nature instituted under any other

DSS page 10 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

statute. The fundamental test to attract section 10 is, whether

on final decision being reached in the previous suit, such

decision would operate as res-judicata in the subsequent suit.

Section 10 applies only in cases where the whole of the

subject matter in both suits is identical. The key words in

section 10 are the “matter in issue is directly and substantially

in issue” in the previous instituted suit. Therefore, section 10

would apply only if there is identity of the matter in issue in

both the suits, meaning thereby, that the whole of subject

matter in both the proceedings is identical.

17] In National Institute of Mental Health and Neuro

Sciences vs. C. Parameshwara (supra), an employee had been

removed from service on the charges of misappropriation of

drugs after conduct of disciplinary proceedings. The Labour

Court upset the dismissal by award dated 29 th October 2001.

The employer instituted Writ Petition No. 24348 of 2002 to

question the Labour Court award. At the same time, the

employer, had also instituted Civil Suit No. 1732 of 1995 for

recovery of loss suffered by it on account of misappropriation

of drugs by the employee. The Supreme Court, in such

DSS page 11 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

circumstances, held that the civil suit could not be stayed by

invoking the provisions of section 10 of the CPC since, the

subject matter of the two proceedings was entirely distinct

and different. Even the cause of action in the two proceedings

was entirely different and distinct. The Supreme Court also

held that the proceedings before the Labour Court cannot be

equated with the proceedings before the civil court. The

Labour Court, cannot be held to be a court of concurrent

jurisdiction and therefore section 10 had no application to the

facts of the case.

18] The contention that stay to civil proceedings can always

be granted even though the parameters of section 10 may not

be strictly fulfilled was rejected by the Supreme Court by

reference to its earlier decision in Manohar Lal Chopra vs.

Rai Bahadur Rao Raja Seth Hiralal reported in AIR 1962

SC 527. The Supreme Court held that the inherent

jurisdiction of the court to make orders ex debito justitiae is

undoubtedly affirmed by section 151 of CPC. However, that

jurisdiction cannot be exercised so as to nullify the provisions

of the Code. Where the Code deals expressly with a particular

matter, the provision should normally be regarded as

DSS page 12 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::
j-wp-7015-16

exhaustive. Since, in the case before the Supreme Court, the

section 10 of the CPC had no application, consequently it was

not open the High Court to by-pass section 10 of CPC by

invoking section 151 of CPC. This is a complete answer to

Mr.Soni’s contention that stay to the civil proceedings in the

present case, was required to be granted under section 151 of

CPC, since, even he conceded that the parameters of section

10 of the CPC were not attracted to the present case.

19] Upon cumulative consideration of the aforesaid, there

is no case made out to interfere with the impugned order.

This petition is therefore dismissed. There shall, however, be

no order as to costs.

(M. S. SONAK, J.)

DSS page 13 of 13

::: Uploaded on – 14/12/2017 15/12/2017 02:12:56 :::