For a stay under Section 10 of the CPC, issues in both suits must be directly and substantially identical; differing issues result in dismissal of stay applications.

JUDGMENT :

Heard Mr. S.J. Sarma, learned counsel appearing for the petitioners. Also heard Mr. A. Ikbal, learned senior counsel representing the sole respondent.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 03.03.2017 passed by the learned Civil Judge No.3, Kamrup (M) at Guwahati in T.S. No.114/2014.

3. The present petitioners filed T.S. 244/2006 in the court of the Munsiff No.3 at Guwahati praying for a declaration that they are lawful occupiers in respect of the suit property and prayed for permanent injunction restraining the present respondent (the defendant in the said suit) from forcible dispossession from the suit property.

4. The T.S. 244/2006 was decreed on contest and the present respondent (the defendant in the said suit) filed an appeal being T.A. 123/2014.

5. Thereafter, the present respondent (the defendant in T.S. 244/2006) filed another suit being T.S. 114/2014 against the present petitioners praying for a declaration that the present petitioners are not lawful tenants under him and are trespassers in respect of the said Schedule-B premises. The present respondent, being the plaintiff in the new suit, prayed for a decree declaring that the deed of lease dated 05.01.2004 was a fraudulent and fabricated document. The respondent prayed for recovery of possession of Schedule-B premise.

6. After filing of T.S. 114/2014, the present petitioners filed an application under Section 10 of the Code of Civil Procedure praying for stay of the suit on the ground that the matter directly and substantially an issue in the present suit i.e. T.S. 114/2014 is same and between the same parties as of T.S. 244/2006.

7. The learned trial court has held that the matter in issue in T.S. 114/2014, is not directly and substantially an issue in the previous suit and therefore, rejected the prayer under Section 10 of the Civil Procedure Code.

8. I have considered the submissions made by the learned counsel of both sides.

9. In Shri Bhupal Ch. Das v. Shri Durga Barman & Ors., reported in 1990 1 GLR 400, this Court has held as under:

“ Section 10 of the CPC provides:

"10. Stay of suit.- No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme court". One of the essential conditions to attract Section 10 of the CPC is that the matter in issue in a suit is also directly and substantially in issue in a previously instituted suit between the same parties. The "matter in issue" means the subject in controversy between the parties. There must be substantial identity of matter in issue in the two suits. Different tests have been evolved by the courts to decide applicability of Section 10 One of such tests, which is often applied, is whether final decision in the previous suit would operate as res judicate in the subsequent suit. Another test is whether in the earlier suit, the Court can also grant the relief sought tor in subsequent suit. There is still another test which, in my opinion, is easier to apply and more appropriate. This test is whether the decision in the previous suit would affect the decision in the subsequent suit.. If the answer is `Yest, Section 10 would apply and the Court should stay the subsequent suit. Otherwise not.”

10. In T.S. 244/2006, the present petitioners being p