ORDER :- This is a revision against the order of the Subordinate Judge, Manipur, in Judicial Misc. Case No. 44 of 1962, staying the trial of T. S. No. 18 of 1962 under Section 10 Civil Procedure Code.

2. The learned Subordinate Judge has stated that the parties in the suits - T. S. No. 7 of 1961 and T. S. No. 18 of 1962 are the same and that the subject-matter in both the suits is also the same and that as T. S. No. 7 of 1961 is the earlier suit, the trial of T. S. No. 18 of 1962 should be stayed.

3. It is evident that the learned Subordinate Judge, has not looked into the names of parties in the two cases before saying that the parties in both the suits are the same. The Plaintiff in T. S. No. 7 of 1961 is one Iboton Singh, while the first Defendant is Dwijamani Sarma and Defendants 2 and 3 are two brothers, the sons of one Toloi Singh and the 4th defendant is Tikendrajit Singh son of Shengoi Singh. The plaintiff, Iboton Singh filed the suit for evicting defendants 2 to 4 from a certain land and claiming loushal from defendants 2 and 3, who are said to be tenants under the first defendant from whom, the plaintiff purchased the property. The 4th defendant was added as a party in April, 1962, because defendants 2 and 3 set up title in him. The 4th defendant has not yet filed his written statement in the suit.

4. After the 4th defendant was impleaded in the suit, without notice to him and before he was served with summons in the suit, he filed T. S. No. 18 of 1962 as plaintiff, (1) against Dwijamani Sarma, (who is defendent No. 1 in T. S. No. 7 of 1961) as defendant 1, (2) against Iboton Singh (plaintiff in the earlier suit) as defendant No. 2, and (3) against his own father Sheongoi Singh as defendant 3. He prays for a decree declaring his title and cancelling, or setting aside the sale-deed dated 17-2-39 executed by his father Shengoi Singh in favour of Dwijamani Sarma and also the sale-deed dated 22-6-60 executed by Dwijamani Sarma, in favour of Iboton Singh. Thus, defendants 2 and 3 in T. S. No. 7 of 1961, are not parties to the latter suit. Nor is Shengoi Singh a party to T. S, No. 7 of 1961. Thus, the statement of the Subordinate Judge that parties are the same in both the suits is clearly wrong.

5. But it is not necessary that the parties to the two suits should be the same. It is enough if the previously instituted suit is between parties under whom they or any of them claim litigating under the same title. This may apply in the present case. But the learned Subordinate Judges order which is a very brief one does not mention whether this will actually apply to the present case.

Further the Subordinate Judge states that the subject-matter in the two suits is the same. No doubt, the land involved is the same and Iboton Singh is claiming title and possession in the first suit and he claims that he derived title from Dwijamani Sarma and it is seen that Dwijamani Sarma got title from Shengoi Singh, the father of Tikendrajit Singh, who is the 4th defendant in T. S. No. 7 of 1961 and the plaintiff in the second suit. But what is required under Section 10 Civil Procedure Code is that the matter in issue in both the suits must be directly and substantially the same in both the suits. Now before we decide this question, it is necessary that the parties in both the suits should have filed their written statements and that issues should be framed in the two suits before we know the allegations and contentions in the two cases. Unless that is done, it is not possible to decide whether the matter in issue is directly and substantially the same in the two suits. Thus, the 4th defendant Tikendrajit Singh has not yet filed his written statement in the first suit. Nor have any of the defendants filed written statements in the second suit.

What Section 10 provides is that the trial of the second suit shall not be proceeded with. Thus all the preliminaries prior to the trial upto the stage of framing the issues should be gone through in both the

Click Here to Read the rest of this document