RAJESH NARAYAN Vs. SNEHA BHATTACHARYA (NEE CHATTERJEE)

JUDGEMENT

(1.) 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.