Application for stay of suit filed during pendency of second appeal.

(Revision Petition filed against the order-dated 26.10.2004, made in I.A.No.269/2003 in O.S.No.134/2001, on the file of the I Addl. District Munsif cum Judicial Magistrate Court No.1, Ulundurpet.)

The defendants in O.S.No.134/2001 on the file of the I Addl. District Munsif-cum-Judicial Magistrate court No.1, Ulundurpet are the revision petitioners herein.

2. The respondents herein filed O.S.No.134/2001 for a declaration and recovery of possession of 'C' and 'D' schedule properties and also for other reliefs. The defendants filed an application in I.A.No.269/2003 under Sec.10 of the Code of Civil Procedure to stay all further proceedings in O.S.No.134/2001 till the disposal of the Second Appeal filed by them before this court with regard to the suit schedule properties.

3. The revision petitioners/defendants have stated in the affidavit filed in support of the Application filed under Sec.10 of C.P.C. that the earlier suit in O.S.No.422/1986 filed by the father of the 2nd defendant in the District Munsif Court, Tirukoilur was for recovery of 'C' and 'D' schedule properties of the present suit. After the judgment and decree made in O.S.No.422/1986 on 14.12.1994, the plaintiffs in the present suit filed first appeal in A.S.No.107/1995 and the appellate court passed judgment and decree in favour of the present plaintiffs with regard to item Nos.3,4 and 5 of the suit schedule and dismissed the suit with regard to other properties on 28.10.97. Against the judgment and decree dated 28.10.97 in A.S.No.107/95, Second Appeal was filed by the revision petitioners herein and the same was pending in this court in S.R.Stage. Even after knowing fully well about the pendency of the Second Appeal, the respondents herein filed the present suit in O.S.No.134/2001 and the same is to be stayed till the disposal of the Second Appeal.

4. The respondents herein seriously contested the said Application filed under Sec.10 of C.P.C. by submitting that the said Second Appeal was filed in the year 1998, there was no possibility of numbering the same after a period of 6 years. However a memo was filed by the revision petitioners/defendants before the trial court informing that the Second Appeal has been numbered in S.A.No.1377/2003.

5. The trial Judge dismissed the said Application by holding that the nature of the prayer and the cause of action in the present suit are totally different.

6. The only point for consideration before the court is whether the proceedings in O.S.No.134/2001 are to be stayed under Sec.10 C.P.C. till the disposal of S.A.No.1377/03.

7. Sec.10 of C.P.C. reads as under:-

"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 in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court."

8. The object of Sec.10 C.P.C. is to prevent the courts of a concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief.

9. Thus the following conditions must be fulfilled for attracting the provisions of Sec.10 C.P.C.:-

(1) The suit must be between the same parties or their successors;

(2) The matter in issue in the latter suit must be directly or substantially the same as in the previous suit;

(3) Both the suits must be pending in the court of law;

(4) That the parties must be litigating under the same title in the same suits.

10. If the above four conditions are present, then the courts have no discretion except to stay the latter suit proceedings. But the onus is heavily on the person who pleads