Suresh Shivhare vs Trimurti Charitable Public Trust

Sujoy Paul, J.—Heard. This petition under Article 227 of Constitution is directed against the order dated 25-06-2013 passed by learned trial Court in case No. 119-A/2012 Civil Suit (Annexure P/5).

Petitioner/defendant No. 2 preferred an application u/s 10 read with Section 151 of CPC (Annexure P/3). In the said application, it is contended that the second suit be stayed as mandated in Section 10 of CPC. By taking this Court to both the suits, Shri Dudawat submits that property is same and therefore, the Court below has erred in rejecting the application preferred u/s 10 of CPC. It is contended that first suit is Annexure P/2 (Case No. 92-A/2000 Civil Suit) whereas second suit is Annexure P/1 i.e. case No. 119-A/12 Civil Suit. It is contended that the Court below has legally erred in rejecting the said application.

The Court below has rejected Section 10 application on the ground that the parties in both the suits are not same/common. It is held that parties are different, relief and issues involved are not totally same and therefore, Section 10 is not applicable.

The finding of learned trial Court that parties in both these suits are different is totally correct. Thus, the parties in both the suits are not same. Putting it differently, both the suits are not contested between the same parties. If the relief claimed in both the suits aforesaid are examined, it is clear that even the issues and subject of both the suits are different. In the considered opinion of this Court, Section 10 of CPC can be made applicable when the parties are same and entire subject matter in controversy is same. Merely because some issues are common by overlapping, cannot be a reason to invoke Section 10 of CPC. The Apex Court in the recent judgment Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor, opined that key words in Section 10 of CPC "the matter in issue is directly and substantially in issue in a previously instituted suit". It is further opined that if in any subsequent matter some issues are common Section 10 cannot be pressed into service unless the entire subject matter of two suits are same. In other words Section 10 will not apply where few of matters in issue are common and will apply when the entire subject matter in controversy is the same. In the light of this recent judgment, I find no legal flaw in the order passed by the Court below. Petition sans substance is hereby dismissed.