@JUDGMENTTAG-ORDER
A.K. Shrivastava, J.
Heard on I.A. No. 15411/2010, which is an application for deleting the names of Respondents 1 and 8, namely, Sardar Khan and Smt. Rasulan respectively.
The contention of learned Counsel for the Petitioners is that these Respondents who were arrayed as Defendants in the trial Court, no relief has been claimed against them as well as these two Defendants remained ex parte also and they had also died and, therefore, the names of Respondents 1 and 8 be deleted from the cause title of this petition.
On being asked by us that as to whether the Plaintiffs/Petitioners have moved any application for substitution in the trial Court, learned Counsel submits that there is stay of further proceedings of trial Court vide order dated 13-7-2009 passed by this Court and, hence, even if any application is filed, it will be a futile exercise on account of stay order. According to us, the argument appears to be misconceived for the simple reason that even if there is an order of this Court staying the further proceedings of the trial Court, for collateral purpose an application could have been filed in the trial Court and order could have been passed, in this context, it would be profitable to place reliance on the Division Bench decision of this Court Madanlal Agrawal v. Kamlesh Nigam 1975 MPLJ 240 : 1975 JLJ 323 in which in paras 5 and 6 the Division Bench has held thus:
5, Usually, stay orders are passed by the Appellate Court or by the revisional Court. In some kinds of stay orders, there is partial stay. Or, in some other types of stay orders, the stay is complete. But, it is to be noted that the stay may be regarding execution of decree or in respect of further proceedings in the trial Court. The stay order passed by this Court on 21-1-1972 was in respect of further trial of the suit. It is, therefore, necessary to ascertain as to what the phrase exactly implies. There can be no doubt that when further trial of the suit or further proceedings in the trial Court are stayed, the Court of original jurisdiction or the Court below, as the case may be, would have no jurisdiction to take any steps which would be in furtherance of the trial on merits. Can it be said that the trial Court loses all jurisdiction to take any collateral action which may, in a sense, be towards the progress of the suit, but which is not in furtherance of the trial of the suit on merits? For instance, if the appellate or the revisional Court has passed a stay order, can it be said that the trial Court cannot on a request made by the parties, refer the dispute to arbitration. In
For instance, if an appeal or a revision is pending in the appellate or the revisional Court and if one of the parties dies in the meantime and if the appellate or the revisional Court happens to pass a stay order, that would not oust the jurisdiction of the trial Court to entertain an application for substitution of legal representatives under Order 22, Rule 3 or Rule 4, of the Code of Civil Procedure. of course, an application can as well be made in the appeal or the revision pending before the appellate or the revisional Court. Similarly, we do not see any reason why proceedings under Order 39, Rules 1 or 2, or Order 40, Rule 1, of the CPC cannot be taken in the trial Court during the pendency of a stay order passed by the appellate or the revisional Court. The proceeding relating to grant of injunction or appointment of a receiver may be proceeding in the suit, but this would not be a proceeding in further trial of the suit on merits. Suppose, if a party is trying to damage the property, we do not see any reason why the party aggrieved cannot approach the trial Court for appointment of a receiver or for an injunction. Similarly, if one of the parties tries to take steps which would ultimately result in defeating the decree that might be passed, we do not see any reason why the party aggrieved cannot be allowed to approach the trial Judge for an order of attachment before judgment under Order 38, Rule 5, of the Code of Civil Procedure, which, although may be a proceeding in the suit, will not be in furtherance of the trial of the suit on merits, but it would only be a protective step so as to ensure that the Defendant may not be able to defeat any ultimate decree that might be passed in the suit. Looked at from this point of view, we are of the opinion that during the pendency of a stay order passed by the appellate or the revisional Court, although the trial Court or the Court below may not have any jurisdiction to proceed with the trial of the suit on merits, it can certainly take such other steps which are collateral or which may be protective or which would be for the purpose of keeping the lis alive and all such steps, in our opinion, such as any application under Order 22, Rule 3 or Rule 4, of the CPC or an application under Order 39, Rule 1 or Rule 2 or an application under Order 40, Rule 1, or an application under Order 38, Rule 5, would be maintainable in the trial Court in spite of such stay order." By placing reliance on the aforesaid Division Bench decision, even if this Court has directed that the further proceedings of the trial Court be stayed, according to us, there is no bar in filing the relevant application for substitution in the trial Court and/or necessary application under Order 22, Rule 4(iv) of Code of Civil Procedure.
In view of this, it is directed that if such an application is filed in the trial Court, since it will be a collateral proceeding, according to us, the learned trial Court shall be free to pass necessary order on that application.
With the aforesaid observations, I.A. No. 15411/2010, is disposed of.
Learned Counsel further submits that he would like to file necessary application in respect of service of Respondent No. 2, namely, Najeer Khan.
Let him do so.
