The applicability of Section 10 of the CPC is determined by the identity of issues in the suits, not the nature of relief sought.

ORDER :

1. The petitioners have challenged order dated 19.07.2021 passed by Civil Judge (Senior Division), Sopore, in the case titled “Bilal Ahmad Kirmani vs. Abdul Majeed Kirmani and ors” as also order dated 07.08.2021 passed by the said Court in the case titled “Ab. Majeed Kirmani & others. vs. Bilal Ahmad Kirmani”. By virtue of order dated 19.07.2021, the learned trial court has passed an interim exparte direction restraining the defendants from causing any illegal or unwarranted obstruction in plaintiff’s raising his residential house on land measuring 11 marlas in Khasra No.78 situated at Edipora Bomai Sopore. Vide order dated 07.08.2021, the learned trial court has rejected application of the petitioners filed under Section 10 of the Civil Procedure Code (CPC).

2. No one has been appearing on behalf of the respondent in this case for quite some time. Today also no one has appeared on his behalf. He is, accordingly, set exparte.

3. I have heard learned counsel for the petitioners and perused record of the case.

4. It appears that on 16.07.2021, the petitioners filed a suit for partition and permanent injunction against the respondent before the trial court. In the said suit, it was claimed by the petitioners that they along with the respondent are in joint possession of land measuring 01 kanal and 02 marlas in Khasra No.78-min situated at Edipora Tehsil Zainageer Bomai. According to the petitioners, the parties to the suit had a joint double storied residential house on the said land but the respondent is adamant to demolish this ancestral house. It has been claimed by the petitioners in the said suit that the respondent has demolished his share in the said house and he is now trying to raise construction on the said portion of the property which, according to the petitioners, is joint and unpartitioned. The petitioners have sought a decree of partition of the aforesaid land with an injunction restraining the respondents from raising any construction over the said land. In the aforesaid suit, the learned trial court passed an exparte interim order on 16.07.2021, whereby the parties were directed to maintain status quo with regard to the suit property.

5. It further appears that the respondent filed another suit before the trial court on 19.07.2021 claiming a permanent injunction against the petitioners for restraining them from interfering in his peaceful possession of the suit land and also for restraining the petitioners from causing obstruction in raising of construction on respondent’s share of the property. In the said suit it has been pleaded by the respondent that he is owner in possession of land measuring 04 kanals under Khasra No.78 situated at Edipora Bomai, Sopore, out of which he has dismantled his old house raised on 11 marlas of land. It has been claimed that the petitioners have taken their share of the ancestral property but they are obstructing the respondent from raising construction of his residential house on the land which has fallen to his share after partition. In the said suit, the learned trial court has passed impugned order dated 19.07.2021, whereby the petitioners have been temporarily restrained from causing any illegal or unwarranted obstruction to respondent in raising his residential house. 6. The record further shows that on 26.07.2021, the petitioners filed an application under Section 10 of the CPC for staying the suit filed by the respondent on the ground that subject matter of two suits is the same and the issues involved in the two suits are also identical. The said application came to be dismissed by the learned trial court in terms of impugned order dated 07.08.2021 by holding that in the previous suit, the petitioners have sought partition and permanent injunction whereas in the subsequent suit the respondent has sought only an injunction by claiming that partition has already taken place. Thus, according to the learned trial court the issues involved in the two suits are different and