Velur Munuswami Mudaliar vs Darwaija Raghupati

Abdur Rahman, J.—This is a petition for revision against the order of the District Munsiff of Tirupati rejecting the petitioner''s application for

stay of suit No. 861 of 1935 u/s 10, Civil Procedure Code, until the matter in Appeal No. 6 of 1934 pending in the District Court of Chittoor is

decided. It has been urged on behalf of the petitioner that inasmuch as the main contention between the parties in the present suit and in Appeal

No. 6 of 1934 relates to the occupancy rights claimed by the petitioner he is entitled to demand a stay. It cannot be disputed that the provisions

contained in Section 10 are mandatory in character and when the facts of a particular case invoke the operation of that section, the Courts have no

other alternative but to give effect to it and stay the suit. I have therefore to determine if the ''matter in issue'' in the present suit is directly or

substantially in issue in Appeal No. 6 of 1934, which must be taken to be the continuation of a previously instituted suit.

At this stage it will be convenient to state that the first suit I was filed on behalf of the respondent for rent in respect of a particular period and the

present suit is in respect of a subsequent period. It is not quite clear from the record which is in the High Court whether the rents claimed in both

the suits were for the same plots of land. The Counsel for the respondent asserted before me that they were different. The Counsel for the

petitioner, on whom the onus lay to show that the provisions of Section 10, Civil Procedure Code, applied to the facts of this case and that the

order of the lower Court was wrong, was unable to deny the fact alleged by the counsel for the respondent. Assuming however for the sake of

argument that the area of land comprised in both the suits was identical, the question still remains to be decided if ""the matter in issue"" in the prior

suit is the same. The petitioner''s counsel contends that the question of the nature of tenure in both the suits is common and this is, it is urged, the

main issue in both the suits. But the expression ""the matter in issue"" as used in Section 10, Civil Procedure Code, does not mean any matter in

issue. The matter in issue in a previously instituted suit obviously refers to the entire subject-matter in dispute and not to one of the issues, however

important it may be for the decision of the suit.

In this case, even if the area of the land in both the suits is regarded to be the same, the amount claimed in the latter suit is apparently for a

different period from the amount claimed in the former suit. The matters in issue in both the suits are therefore not the same. Section 10, Civil

Procedure Code, does not therefore debar the trial of this suit. The revision is accordingly rejected with costs.

It is unfortunate that this petition has been pending for two years although the order passed by the learned judge admitting the revision on 31st

August, 1936, was that the Civil Revision Petition would be posted within a month. It is also surprising that the appeal pending in the District Court

of Chittoor has not been decided up till now. Both these questions must be investigated and I should be informed of the reasons why the Civil

Revision Petition was not posted earlier and how the matter in appeal has not been so far disposed of.