ATHIMUTHAN Vs. KANJANA

JUDGEMENT

(1.) The Civil Revision Petition has been filed by the plaintiff against the order passed by the Trial Court under Sec. 10 of the Code of Civil Procedure staying the suit.

(2.) The brief facts of the case are as follows:

(3.) The learned counsel for the petitioner would submit that the petitioner is the plaintiff in O.S. No. 233 of 2013 and the first defendant in O.S. No. 102 of 2011. The other defendants in O.S. No. 102 of 2011 are the government officials. The schedule of properties and the parties involved in the suit are different and the issue involved in the suit is also different. He would further submit that to attract Sec. 10 of the Code of Civil Procedure, any matter in issue in the present suit must be directly and substantially the issue in the earlier suit instituted between the parties and the subject matter of the suits must be one and the same between the parties. He would further submit that as a matter of fact Sec. 10 of the Code of Civil Procedure is a restricted provision and not a permissive one. The Trial Court without properly analyzing the fact that the schedule of properties are different and without considering the fact that the parties are also different had stayed the suit. Further in the earlier suit filed by the respondent the description of the suit scheduled property is not clear and precise. The survey number and specific boundaries of the property have not been stated. As far as in the subsequent suit filed by the petitioner for declaration, the survey numbers, boundaries and the extent of the properties have also been clearly mentioned and the petitioner has sought for declaration to declare him as absolute owner of the suit schedule properties, whereas in the earlier suit the respondents have without specifying the boundaries or survey numbers had sought to declare the suit scheduled properties as a public road. Further in the earlier suit, the Government Officials were added as party and in the subsequent suit the Government officials are not parties. The learned counsel would further submit that in order to attract Sec. 10 of the Code of Civil Procedure it is essential that the entire subject matter in controversy must be same between the previous suit and the subsequent suit. The test for applicability of Sec. 10 is whether on a final decision being reached in the previously instituted suit such decision would operate as res judicata in the subsequent suit. When the matter is controversy is the same, it may be immaterial what further relief is claimed in the subsequent suit. Though application of Sec. 10 of the Code of Civil Procedure entire subject matter of two suits must be the same and Sec. 10 will not apply where a few of the matters in issue are common and will apply only when the entire suit in controversy is same. In Support of his contention, the learned counsel appearing for the petitioner relied on the judgment of the Hon'ble Apex Court in the case of Aspi Jal and another vs. khushroo Rustom Dadyburjor reported in (2013) 4 SCC 333.