MAHESH SINGH Vs. MAHENDRA SINGH SARAF

JUDGEMENT

(1.) THE Civil Revision is against the order allowing an application for stay of proceedings before the court at Rewari Haryana, which was instituted by the petitioner. The application for stay was moved by the defendants on the ground that there had been an earlier a suit for declaration with reference to -some of the properties in suit in the court at Darjeeling and the issue raised in the said suit was the validity or otherwise of the deed of release and entitlement of the defendants to bring about a partition of the property amongst themselves to the exclusion of the plaintiff. It is not in doubt that the issue of validity of the release and whether partition that had been brought about amongst the defendants for the properties in Darjeeling is binding or not are also issues before the court at Rewari. The trial court has noticed that the suit filed at Rewari was later in point of time and considering that substantial issue of the validity of the release was required to be adjudicated in both courts, granted stay of the trial of suit till disposal of the case pending at Darjeeling in the application moved under Section 10 C.P.C. Learned Senior Counsel appearing on behalf of the petitioner would point out that that there has to be congruity in both suits and a substantial adjudication in one court ought cover a substantial adjudication in the other suit as well. This test, according to him, is most essential in this case since in his own suit there are 20 items of properties, which included deposits, jewellery and other valuables, besides, properties at Rewari, Delhi and Darjeeling, which are not the properties in the suit filed earlier by some of the defendants. Further, not even all the parties in the at Rewari are parties in the suit at Darjeeling and in the suit instituted at Darjeeling only the brothers have been made as parties while the sisters have not been. The plaintiffs at Darjeeling have only sought for declaration with reference to the properties which were included in the release but the plaintiff has himself filed the present suit for partition also of the properties at Darjeeling, which are not the subject of release. The counsel also argues that the suit at Darjeeling is still at the stage of service, while the proceedings at Rewari have gone to a still further stage of service being complete and the statements of the parties have also been brought on record.

(2.) I am of the view that adjudication of the suit in Darjeeling cannot conclude all the issues, though there is substantial issue relating to the validity of the release, which is common in both the suits. If the parties must avoid a conflict in judgment in the issue, probably a better option would to apply for transfer before the Supreme Court that both the suits be tried together. Granting stay in the subsequent suit that contains substantially other properties and other parties and the adjudication with reference to the remaining properties will be grossly inequitable and cause prejudice to the plaintiffs. An application under Section 10 of the C.P.C., though it reads that the court shall stay the subsequent suit if there is a matter in issue, which is directly and substantially in issue in the previously instituted suit, it should be understood that the court's discretion is not fettered if adjudication on all issues raised in subsequent suit are not all covered in the previously instituted suit and stay of such subsequent suit will cause substantial prejudice. I, therefore, vacate the stay ordered by the court at Rewari, set aside and the Civil Revision is allowed, leaving, however, open to the parties to move any other application before the Supreme Court, if so advised, for transfer of both the suits to be tried together.