The matter in issue in a subsequent suit is directly and substantially in issue in a previously instituted suit if the controversy between the parties in both the suits is the same.

JAYANTA KUMAR BISWAS, J.

( 1 ) THE sole defendant in CS No. 318 of 2004 has taken out this application (GA 1729 of 2005) under S. 10 of the Code of Civil Procedure, 1908 for an order staying all further proceedings in the suit.

( 2 ) THE plaintiff and the defendant, in CS no. 318 of 2004, entered into an agreement for sale dated September 14, 2001. The agreement was with respect to certain land located in Patna. In terms of Cl. 17 of that agreement the plaintiff was to execute and give an irrevocable general power of attorney to the defendant, and that power was to be governed by the provisions of that agreement. The terms and conditions of the agreement were to prevail in case of conflict between the power and the agreement.

( 3 ) ALLEGING that the members of the Hindu undivided family of which the plaintiff was the Karta, failed and neglected to carry out their obligations in terms of the agreement for sale, the defendant, as plaintiff, filed title suit No. 271 of 2004 in the Court of the first subordinate Judge in Patna; it filed that suit on July 24, 2004. It impleaded one manvendra Singh as the second set defendant in that suit. It prayed for a decree for specific performance of contract for sale of the land. The first set defendant in that suit filed their written statement on April 25, 2005. That suit is pending decision.

( 4 ) ON December 8, 2004 CS No. 318 of 2004 was filed in this Court by the first defendant in the Patna suit; the Calcutta suit was filed by him in the capacity of the Karta of the Hindu undivided family. He alleged that since the defendant failed and neglected to discharge its obligation in terms of the agreement, the agreement for sale stood determined, and as a result the power of attorney executed in terms of Cl. 17 of the agreement stood cancelled. He also alleged that for non-registration the power of attorney concerned was invalid and void. He prayed for a decree declaring the power of attorney as void and cancelled. On June 6, 2005 the defendant took out the present application under S. 10.

( 5 ) COUNSEL for the parties have debated on the question whether the matter in issue in the Calcutta suit it directly and substantially in issue in the Patna suit. According to counsel for the defendant, the matter in issue in the Calcutta suit is whether the agreement for sale had stood determined, and hence it is directly and wholly in issue in the Patna suit where his client prayed for a decree for specific performance of the contract arising out of that agreement. According to counsel for the plaintiff though the issue whether the agreement for sale stood determined is directly in issue in both the suits, it cannot be said that the matter in issue, meaning thereby the whole subject-matter of the Calcutta suit, is directly and substantially in issue in the Patna suit.

( 6 ) FOR this he places strong reliance on the Apex Court decision in National Institute of Mental Health and Neurosciences v. C. Parameshwar, (2005) 2 SCC 256 : (AIR 2005 sc 242 ). His contention is that unless there is absolute identity of the whole subject-matter, it cannot be said that the matter in issue in the Calcutta suit is directly and substantially in issue in the Patna suit in support of his contention he has also relied on the decisions in Vallabh Das v. Madanlal, air 1970 SC 987, Shaw Wallace and Company limited v. Bholanath Madanlal Sherawala, air 1975 Cal 411, Adhish Chandra Sinha v. Hindusthan Gas and Industries Limited, 88 CWN 949 : (AIR 1985 Cal 154), Pukhraj d. Jain v. G. Gopalakrishna, (2004) 7 SCC 251 : (AIR 2004 SC 3504) and Heinz Italia v. Dabur India Limited, AIR 2005 Cal 89.

( 7 ) COUNSEL for the defendant has relied on the decisions in Shorab Modi v. Mansata film Distributor, AIR 1957 Cal 727, Mathura prasad v. Dossibai, AIR 1971 SC 2355, A. G. Industries v. Rishabh Manufacturers, AIR 1972 Cal 128, and Challapalli Sugars Limited v. Swadeshi Sugar supply Private Limited, AIR 1983 Cal 199. He has also reli

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