ORAL ORDER

The petitioner is the defendant in O.S.No.46 of 2022, is at the doors of this Court calling in question an order of the concerned Court which rejects an application filed by the petitioner in I.A.No.2 seeking arrest of suit in O.S.No.46 of 2022.

2. Heard Sri Rajashekar S, learned counsel appearing for petitioner and Sri Sachin B S, learned counsel appearing for respondent.

3. Facts in brief germane, are as follows:

The petitioner institutes a suit in O.S.No.217 of 2021 seeking partition and separate possession. The said suit was listed before the concerned Court for filing of written statement. At that point in time, another suit in O.S.No.46 of 2022, the subject suit, comes to be filed. The defendant files written statement and the suit progressed. During the progression of the suit, the petitioner files an application seeking staying of the subject suit invoking Section 10 of the CPC. The application comes to be rejected on 03-01-2024, the rejection of which has driven the petitioner/defendant before this Court in the subject petition.

4. The learned counsel Sri Rajashekar S, appearing for the petitioner would contend that the first suit instituted was for partition and separate possession in which the petitioner and the defendants therein sought partition of the property. At the time when the suit was progressing, the 5^th defendant therein institutes another suit in O.S.No.46 of 2022 seeking eviction. After filing of the said suit, an application comes to be filed by the petitioner/defendant seeking stay of further proceedings in O.S.No.46 of 2022 instituted for eviction. It is his contention that the suit schedule property in both the petitions being the same, should necessarily lead to staying of a suit.

5. Per-contra, learned counsel for the respondent Sri B S Sachin would vehemently refute the submission contending that the suit in O.S.No.46 of 2022 is entirely different from the suit in O.S.217 of 2021, one is seeking partition and separate possession and the other seeking eviction of the present defendant. It is neither literally nor actually the same cause of action for seeking stay of the suit. He would submit that the application is rightly rejected by the concerned Court.

6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

7. The afore-narrated facts are not in dispute. The issue at this juncture lies in a narrow compass. It pertains to whether the application seeking stay of the suit in O.S.No.46 of 2022 should be permitted or otherwise. The facts that led to filing of a suit for partition and separate possession are narrated in the said plaint in O.S.No.217 of 2021, it is between the members of the family. During the subsistence of the said suit, another suit in O.S.No.46 of 2022 comes to be filed. Therefore, it is necessary to notice the prayer in O.S.No.217 of 2021 and O.S.No.46 of 2022, they read as follows:

O.S.No.217 of 2021:

“a) Directing for division of the plaint A, B, C & D schedule property and allot 1/8^TH share to the plaintiffs with reference to good and bad soil and meets and bounds.

b) For a permanent prohibitory injunction restraining the 1^st & 2^nd defendant or their men's servants, agents or any persons claiming through or under them from in any manner dispossessing the plaintiff from Item No.1 of the plaint B schedule property.

c) For a permanent prohibitory injunction restraining the 1^st & 2^nd defendant or their men’s servants, agents or any persons claiming through or under them from in any manner dispossessing the plaintiff from Item No.1 of the plaint B schedule property.

a) For a permanent prohibitory injunction restraining the 1^st & 2^nd defendant or their men's servants, agents or any persons claiming through or under them from in any manner withdrawing the amount shown in Schedule D from 9^th defendant.

b) For grant of costs of this suit.

c) For grant of such other and further reliefs”

O.S.No.46 of 2022:

“i.