IMPORTANT POINT
Stay of suit – Words “directly and substantially in issue” are used in contradistinction to words ‘incidentally or collaterally in issue.’

JUDGMENT

Subhasis Dasgupta, J.—The subject matter of challenge in this revisional application is against the rejection of an application under Section 10 of the Code of Civil Procedure, filed by the petitioners/defendants in Title Suit No. 1691 of 2018, praying for stay of suit pending before the learned Judge, 6th Bench City Civil Court, at Calcutta.

2. Mr. Joydip Kar, learned senior advocate representing the petitioner, being assisted by Mr. Debjit Mukherjee submitted that the learned court below had erroneously rejected the application under Section 10 of the Code of Civil Procedure without adhering to the mandatory requirement pertaining to the conditions applicable under Section 10 of the Code of Civil Procedure, and its test thereunder, and thus rejected the prayer most mechanically. It was further contended that after rejecting the prayer for stay of suit, the court below by the impugned order most gratuitously suggested for a joint trial, and allowed analogous trial of two suits, pending in two different courts, what was not the actual prayer advanced before the court below.

3. It was also contended by the petitioners that in view of the facts and circumstances involved in this case, the court below fell into an error of law in rejecting the application under Section 10 of the Code of Civil Procedure without considering the fundamental test as to whether the decision of the previously instituted suit (T.S. No.554 of 2006 pending before the learned Judge 4th Bench, City Civil Court at Calcutta, filed by the petitioners) would operate as res judicata in the subsequently instituted suit (T.S No. 1691 of 2018 pending before the learned Judge 6th Bench City Civil Court at Calcutta, filed by the opposite party), on the simple score that not only in both the suit, there were identity of the parties, but there was also familiarity, commonness in respect of the matter in controversy surfaced between the two sets of litigation, pending in two different courts.

4. Disputing with the impugned order allowing analogous trial of both the suits referred above, and thereby facilitating consolidation of two suits, Mr. Kar strenuously argued that consolidation of two suits could not be allowed to be made making departure of the provisions of law.

5. Per contra Mr. Probal Mukherjee, learned senior advocate for the opposite parties being assisted by Mr. Souradipta Banerjee, supporting the order of the learned court below, submitted that learned court below had rightly rejected the prayer for stay of suit, and thereby allowing analogous trial of the two suits pending between the parties in two different courts, simply to facilitate consolidation of two suits, so that there could not be any conflicting decisions, and more so there would be saving of time as regards tenure of litigation.

6. Mr. Mukherjee replied that when the learned court below in exercise of lawful authority reasonably and most judiciously exercised his discretion, while allowing analogous trial of the two suits, referred above, after rejecting the prayer for stay of the suit under Section 10 of the Code of Civil Procedure, such discretion being judiciously exercised, and also aiming at for the benefit of the parties to this case must go unaltered. The revisional application, according to Mr. Mukherjee, would necessarily fail being without any merits, and as such no interference is necessary.

7. The point requiring address by this court in context with the submission advanced by both the parties to this case, is whether the learned court below rightly decided the prayer for stay of suit in terms of the provisions as available under Section 10 of the Code of Civil Procedure.

8. Before addressing the issue mentioned hereinabove, a reference to some of the facts may be of useful assistance for perfectly addressing the issue. The petitioners claimed themselves to be owners of flat No. 10A situated on 10th floor with open parking space in the ground floor, on the strength of the