(1.) THIS writ petition is filed by the defendant challenging the order dated 15-4-2009 passed by Second Additional District Judge to the Court of First additional District Judge, Gwalior in Civil Suit Mo. 59-A/06 whereby the Trial court has rejected the application filed by the present petitioner defendant under Section 10 of the Code of Civil Procedure for stay of subsequent suit.
(2.) FACTS of the case, briefly stated are that the respondent plaintiff had filed a civil suit for declaration in respect of the property in dispute against the present defendant in the month of November, 2005. Present petitioner filed his written statement in the said suit denying the title of the plaintiff. Plaintiff, therefore, filed another suit under Section 12 (1) (a), (c) and (n) of the M. P. Accommodation Control Act, 1961 against the present petitioner for ejectment. In that suit, the defendant filed his written statement and again denied the title of the plaintiff. In such circumstances, in both the suits, one of the issues was common that whether the plaintiff is the owner of the suit property. In view of this common issue, present petitioner/defendant filed an application under section 10, CPC for staying the subsequent suit, i. e. , the suit for ejectment. Said application stood dismissed by the order which is impugned in this petition under Article 227 of the Constitution of India.
(3.) SHRI P. C. Chandil, learned Counsel for the petitioner-defendant contended that for staying a suit under Section 10 of CPC, issue in two suits must be substantially the same. In the present case, substantial issue which is common in both the suits is the owner of the property in question. Since this substantial issue is common in both the suits, the subsequent suit filed by the plaintiff deserves to be stayed. To buttress his argument, learned Counsel lay hands on a decision of this Court in the case of Munnalal Vs. Purushottamlal, 1962 JLJ SN 60, wherein this Court has held that for staying the suit under Section 10 of CPC complete identity of the two suits is not necessary and substantial identity of the subject matter or material issue is sufficient to attract the provisions of Section 10 of CPC, if said section is attracted, then it is mandatory for the Court to stay the proceedings in the subsequent suit.