Section 10 of the CPC requires complete identity of subject matter for staying proceedings in concurrent suits; conflicting properties undermine the applicability of this provision.

ORDER :

(M. NAGAPRASANNA, J.)

The petitioner/defendant No.2 in O.S.No.9897 of 2006 is before this Court calling in question an order dated 12-09-2024 by which the application filed by the petitioner in I.A.No.XII under Section 10 of the Code of Civil Procedure is rejected.

2. FACTUAL PRELUDE

The saga begins with the assertion of the petitioner being in possession of the property bearing Site No.52 in Sy.No.17/2A which is said to be wrongly mentioned as Sy.No.3/3B having purchased it on 24-11-1994. The defendant No.2 along with others is said to be in peaceful possession of the property. This is said to be interfered with by respondents 1 to 9, the plaintiffs in the original suit. Owing to interference the petitioner files suit in O.S.No.8729 of 2004 seeking to protect her possession in respect of Sy.No.3/3B. The suit was instituted on 26-11-2004. On 13-11-2006 the 1^st respondent along with others institute a comprehensive suit for declaration of title in O.S.No.9897 of 2006.

3. When things stood thus, the petitioner/defendant No.2 institutes another suit in O.S.No.3599 of 2008 seeking to rectify the description of the property in the sale deed dated 24-11-1994 from Sy.No.3/3B to Sy.No.17/2A. The rectification suit so filed by the petitioner/defendant No.2 comes to be dismissed on 18-06-2009. This dismissal becomes final. After the dismissal of O.S.No.3599 of2008 an amendment application is filed to amend the plaint in O.S.No.8729 of 2004 insofar it concerns the survey number. It is amended from Sy.No.3/3B to Sy.No.17/2A. The suit is again amended by incorporating the relief of declaration on 08-09-2010. All these take place in O.S.No.8729 of 2004. After about 20 years of institution of the suit, the petitioner files an application under Section 10 of the CPC not in O.S.No.8729 of 2004, but in the comprehensive suit filed by the respondents/plaintiffs in O.S.No.9897 of 2006 contending that the two suits arise on the same cause of action and, therefore the proceedings in the later suit in O.S.No.9897 of 2006 be stayed. The concerned Court rejects the application in I.A.No.XII filed under Section 10 of the CPC in terms of its order dated 12-09-2024. In the same breath, the 2^nd defendant files a miscellaneous petition under Section 24 of the CPC seeking to transfer and club both the suits in O.S.No.8729 of 2004 and O.S.No.9897 of 2006. During the pendency of the said miscellaneous petition, the present writ petition is preferred. This coordinate bench of this Court grants an interim order of stay on 04-11-2024. The stay was stay of suit in O.S.No.9897 of 2006. It appears that the miscellaneous petition filed for clubbing two suits is dismissed during the pendency of the subject petition. It is at that stage the matter is heard with the consent of parties.

4. Heard Smt. Nalina Mayegowda, learned senior counsel appearing for the petitioner; Sri Bipin Hegde, learned counsel appearing for respondents 1 to 8 and Sri Angad Kamath, learned counsel appearing for respondent No.9.

5. The learned senior counsel Smt. Nalina Mayegowda would contend that the two suits arise out of the same cause of action. They concern the same survey number. The extent of land owned by the respondents/plaintiffs is 1 acre 5 guntas in which the petitioner holds 7 guntas. Therefore, the cause of action and the boundary description are all the same. In that light, Section 10 of the CPC would straightaway be applicable. She would seek the petition be allowed and the suit be stayed till a decision is arrived at in the 2004 suit filed by the petitioner, which would get concluded in a month or two. She would co