The trial of a subsequently instituted suit can be stayed under Section 10 of the Code of Civil Procedure if the matter in issue is directly and substantially the same as a previously instituted suit. However, the stay can only be granted at the trial stage of the suit, not at the appellate stage.

Deepak Gupta, J.

1. This petition is directed against the order dated 31st March, 2010 passed by the learned Additional District Judge, Ghumarwin whereby he allowed the application filed by the respondents under Section 10 of the Code of Civil Procedure for stay of proceedings at the appellate stage.

2. The undisputed facts are that the suit out of which the present proceeding arises was filed by the petitioners in the year 1993. The respondents herein filed another suit in the year 1997. There is some dispute with regard to the fact as to whether the matter directly and substantially in issue in both the suits is same or not, but at this stage I am not going into that question because it is not necessary to decide this factual aspect of the matter in view of the view which I have taken as would be apparent from the subsequent portion of this judgement.

3. As pointed out above, the suit filed by the respondents was the subsequent suit filed in the year 1997. It, however, was decided against the respondents and in favour of the appellants on 4.12.2001. The appeal filed by the respondents herein before the learned lower Appellate Court was allowed in 2009 and the petitioners herein have filed a Regular Second Appeal No. 298 of 2009, which is pending in this Court.

4. The suit of the present petitioners, which was the previously instituted suit, however got delayed and was finally decreed in favour of the petitioners in the year 2002. Two separate appeals by two separate sets of defendants were filed against the common judgement and decree and those two appeals were pending before the learned lower Appellate Court. During the pendency of these two appeals an application under Section 10 was filed and it was prayed that further proceedings in the appeals be stayed till the Regular Second Appeal filed by the present petitioners is decided by this Court. The application filed by the defendants was allowed and proceedings in both the appeals were stayed pending disposal of the RSA by this Court by the learned lower Appellate Court vide the impugned order, which is under challenge in this petition.

5. I have heard Shri Satyen Vaidya learned counsel for the petitioners and Shri Romesh Verma learned counsel for the respondents.

6. In my view the learned lower Appellate Court gravely erred in allowing these applications. Section 10 of the Code of Civil Procedure reads as follows:-

“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 tile where such suit is pending in the same or any other Court in (India) having jurisdiction to grant the relief claimed or in any Court beyond the limits of (India) established or continued by (the Central Government and having like jurisdiction or before the Supreme Court).”

7. A bare perusal of the Section clearly shows that no Court shall proceed with “trial of the suit” in which the matter in issue is also directly and substantially in issue in a previously instituted suit. Therefore, it is more than apparent that what can be stayed is the trail of the suit and that too trial of the subsequently instituted suit. Here the first suit was instituted by the petitioners and the subsequently instituted suit was of the respondents. It is true that the subsequently instituted suit was decided earlier and has reached the stage of second appeal whereas the previously instituted suit is still at the first appellate stage but this does not mean that the previously instituted suit becomes the subsequently instituted suit. The basic purpose of this section is that the subsequently instituted suit has to be stayed.

8. If we go behind the purpose of Section 10, it is obvious that the framers of Section 10 felt that if a matter has already been decided by a Court, the precious time