Section 10 of CPC can only be invoked when the matter in issue in one suit is directly and substantially in issue in a previously instituted suit between the same parties.

CRP (PD) No. 2899 of 2021

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 12.01.2022

CORAM:

THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN

CRP (PD) No. 2899 of 2021

And

C.M.P.No. 20881 of 2021

Nagarajan

... Petitioner/Petitioner/3^rd Defendant

Vs

Palanisamy

... Respondent/Respondent/Plaintiff

PRAYER: Civil Revision Petition filed under Article 227 of the Constitution

of India against the fair and final orders dated 09.11.2020 passed in I.A.No.

3 of 2021 in O.S.No. 18 of 2016 on the file of the District Munsif Court at

Paramathi.

***

For Petitioner

: Ms. V.Revathi

O R D E R

Challenge in this revision is to the order of the trial Court

dismissing an application filed under Section 10 of the Code of Civil

Procedure seeking stay of the suit in O.S.No. 18 of 2016 on the ground that

1/6

https://www.mhc.tn.gov.in/judis

CRP (PD) No. 2899 of 2021

the previously instituted in the suit in O.S.No. 7 of 2016 is pending.

2. The petitioner is the plaintiff in O.s.No. 7 of 2016 on the file of

the District Munsif Court, Paramathi. The said suit is one for permanent

injunction restraining the defendants from interfering with the plaintiff's

possession of the suit properties.

3. The plaintiff would claim that he is the exclusive owner of the

suit property and he is in possession in his own right. The third respondent

in O.S.No. 7 of 2016 has filed the suit in O.S.No. 18 of 2016 in the same

Court seeking partition and separate possession of his 1/9^th share in the suit

properties. The partition suit was filed on 31.01.2016 and the suit for

injunction was filed on 25.01.2016. The petitioner, who is the third

defendant in the partition suit and plaintiff in O.S.No. 7 of 2016, the

injunction suit, has filed the instant application seeking stay of the partition

suit.

4. The application for stay was resisted by the respondents

2/6

https://www.mhc.tn.gov.in/judis

CRP (PD) No. 2899 of 2021

contending that the suit for injunction has been dismissed for default and

therefore, there is no suit pending. It was also contended that the issues that

arise in both the suits are substantially different and therefore, Section 10 of

CPC will not get attracted.

5. The learned trial Judge dismissed the application for stay on

the ground that the suit for injunction has been dismissed and therefore, in

the absence of second suit, an application under Section 10 of CPC would

not lie.

6. Ms. V.Revathi, learned counsel appearing for the petitioner

would vehemently contend that an application to restore the suit is already

pending and if the suit is restored and the suits are tried simultaneously, the

petitioner would be put to hardship.

7. I am unable to accept the contention of the learned counsel

appearing for the petitioner. Even assuming that the reasoning of the trial

Judge that the suit in O.S.No. 7 of 2016 having been dismissed, there cannot

3/6

https://www.mhc.tn.gov.in/judis

CRP (PD) No. 2899 of 2021

be stay of the suit in O.S.No. 18 of 2016 is erroneous, I do not think Section

10 of CPC could be invoked in the case on hand. In order to invoke Section

10 of CPC, the relief prayed for should also be substantially the same.

Section 10 of CPC enables the Court to stay a suit only when the matter in

issue in one suit is directly and substantially in issue in a previously

instituted suit between the same parties. In the suit for injunction, the only

issue that is to be decided is whether the plaintiff is in possession of the

property or not. In the suit for partition, the issue that is to be decided is

whether the plaintiff is entitled to a share or not. Thus two are not matters

which are substantially the same. Therefore, I am unable to interfere with

the order of the trial Court for dismissing the application. Hence, this Civil

Revision Petition fails and it is accordingly dismissed. No costs.

Consequently, connected Civil Miscellaneous Pet