Karnataka High Court
Jameela vs Afra Shibin on 18 September, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 2955 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 2955 OF 2024 (GM-CPC)
BETWEEN:
JAMEELA
W/O LATE HAJEEE S.IBRAHIM
AGED ABOUT 49 YEARS
R/A FLAT NO.503
PLAMA OCEANIC APARTMENT
BEJAI KAPIKAD, BEJAI
MANGALURU - 575 004.
...PETITIONER
(BY SRI RAJASHEKAR S., ADVOCATE)
Digitally signed AND:
by NAGAVENI
Location: High AFRA SHIBIN
Court of
Karnataka D/O LATE FAZLUL RAHEEM
AGED ABOUT 26 YEARS
SAMPYA, ARIYAPU VILLAGE
PUTTUR TALUK - 574 210.
...RESPONDENT
(BY SRI SACHIN B.S., ADVOCATE)
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THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER
DTD 03.01.2024 PASSED ON IA NO.II IN O.S.NO.46/2022 OF I
ADDL.CIVIL JUDGE AND JMFC, MANGALURU, DK VIDE
ANNEXURE-A.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE
THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is the defendant in O.S.No.46 of 2022, is at the doors of this Court calling in question an order of the concerned Court which rejects an application filed by the petitioner in I.A.No.2 seeking arrest of suit in O.S.No.46 of 2022.
2. Heard Sri Rajashekar S, learned counsel appearing for petitioner and Sri Sachin B S, learned counsel appearing for respondent.
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3. Facts in brief germane, are as follows:
The petitioner institutes a suit in O.S.No.217 of 2021 seeking partition and separate possession. The said suit was listed before the concerned Court for filing of written statement. At that point in time, another suit in O.S.No.46 of 2022, the subject suit, comes to be filed. The defendant files written statement and the suit progressed. During the progression of the suit, the petitioner files an application seeking staying of the subject suit invoking Section 10 of the CPC. The application comes to be rejected on 03-01-2024, the rejection of which has driven the petitioner/defendant before this Court in the subject petition.
4. The learned counsel Sri Rajashekar S, appearing for the petitioner would contend that the first suit instituted was for partition and separate possession in which the petitioner and the defendants therein sought partition of the property. At the time when the suit was progressing, the 5th defendant therein institutes another suit in O.S.No.46 of 2022 seeking eviction. After filing of the said suit, an application comes to be filed by the petitioner/defendant seeking stay of further -4- NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR proceedings in O.S.No.46 of 2022 instituted for eviction. It is his contention that the suit schedule property in both the petitions being the same, should necessarily lead to staying of a suit.
5. Per-contra, learned counsel for the respondent Sri B S Sachin would vehemently refute the submission contending that the suit in O.S.No.46 of 2022 is entirely different from the suit in O.S.217 of 2021, one is seeking partition and separate possession and the other seeking eviction of the present defendant. It is neither literally nor actually the same cause of action for seeking stay of the suit.
He would submit that the application is rightly rejected by the concerned Court.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The afore-narrated facts are not in dispute. The issue at this juncture lies in a narrow compass. It pertains to -5- NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR whether the application seeking stay of the suit in O.S.No.46 of 2022 should be permitted or otherwise. The facts that led to filing of a suit for partition and separate possession are narrated in the said plaint in O.S.No.217 of 2021, it is between the members of the family. During the subsistence of the said suit, another suit in O.S.No.46 of 2022 comes to be filed.
Therefore, it is necessary to notice the prayer in O.S.No.217 of 2021 and O.S.No.46 of 2022, they read as follows:
O.S.No.217 of 2021:
"a) Directing for division of the plaint A, B, C & D schedule property and allot 1/8TH share to the plaintiffs with reference to good and bad soil and meets and bounds.
b) For a permanent prohibitory injunction restraining the 1st & 2nd defendant or their men's servants, agents or any persons claiming through or under them from in any manner dispossessing the plaintiff from Item No.1 of the plaint B schedule property.
c) For a permanent prohibitory injunction restraining the 1st & 2nd defendant or their men's servants, agents or any persons claiming through or under them from in any manner dispossessing the plaintiff from Item No.1 of the plaint B schedule property.
a) For a permanent prohibitory injunction restraining the 1st & 2nd defendant or their men's servants, agents or any persons claiming through or under them from in any manner withdrawing the amount shown in Schedule D from 9th defendant.-6-
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b) For grant of costs of this suit.
c) For grant of such other and further reliefs"
O.S.No.46 of 2022:
"i. For a decree of mandatory injunction directing the defendant to quit and vacate the plaint schedule apartment in favour of the plaintiff.
ii. Directing the defendant to pay mesne profits at the rate of ₹.25,000/- per month from the month of November 2021 till the date of filing the suit.
iii. Directing the defendant to pay future mesne profits at the rate of Rs.25,000/- per month from the date of filing the suit till the plaint schedule apartment is vacated by the defendant in favour of the plaintiff.
iv. For the cost of the suit.
v. For such other and further reliefs as this Hon'ble
Court deems fit under the circumstances of the case in the interest of justice and equity."
A perusal at the prayers in both these petitions are undoubtedly different, for the reason, in O.S.No.46 of 2022 the prayer is for eviction of the defendant/petitioner and grant of mesne profits.
The other suit is seeking partition and separate possession.
The contention of the petitioner that both the suits arise out of same cause of action is fundamentally flawed and completely contrary to the tenets of Section 10 of the CPC.
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8. Interpretation of Section 10 of the CPC need not detain this Court for long or delve deep into the matter, as this Court in the case of KUSUMA KUMARI v. DR. HAFEEZUR RAHAMAN1, has held as follows:
".... .... ....
12. In the light of the application filed under Section 10 of the CPC it is necessary to notice the tenor of Section 10 of the CPC. It reads as follows:
"10. Stay of suit.--No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation.--The pendency of a suit in a foreign court does not preclude the Courts in India from trying a suit founded on the same cause of action."
(Emphasis supplied) Section 10 of the CPC deals with stay of suits. It mandates that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit, between the same parties on the same cause of action and the entire subject matter of suits being the same.
12025 SCC OnLine KAR 1217 -8- NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR
13. The learned counsel for the respondents has placed on record a comparative chart of difference between rights of parties and issues framed in both the suits. I deem it appropriate to paraphrase the chart to the subject order. It reads as follows:
"O.S.No.9897/2006 O.S.No.8729/2004 Parties to the suit: Parties to the suit:
Plaintiff: Plaintiff:
1. Dr. Hafeezur Rahman Mrs. Kusuma Kumari Represented by her GPA
Holder,
2. Mr. Shafeequr Rahman
Mr. Sravan Chaitanya.
3. Mr. Najeebur Rahman
Defendants:
4. Mrs. Kamarunnisa.
1. Mr. B.G. Chennappa (GPA holder of Mr.
5. Mrs. Farhath Hayath. Hafeezur Rahman, Mr. Shafeequr Rahman and Mr. Najeebur Rahman) (GPA dated
6. Mr. Syed Afroz 26.10.2004).
7. Mr. Syed Sheraz
2. Mr. Harsha Vardhan
8. Mrs. Saira Rafath
3. Mr. Hafeezur Rahman
9. Mr. Ganesh Babu K
4. Mr. Shafeequr Rahman (Subsequently Impleaded 29.10.2022) 5. Mr. Najeebur Rahman Defendants: 6. Mrs. Kamarunnisa.
Subsequently
1. Mr. T.V. Narayanamurthy 7. Mrs. Farhath Hayath. Impleaded
2. Mrs. Kusumakumari 8. Mr. Syed Afroz 11.09.2009
3. Mrs. Parijat Prakash 9. Mr. Syed Sheraz
4. Mrs. Ramamma 10. Mrs. Saira Rafath
5. Mr. Galichoudappa 11. Mr. K. Ganesh Babu (Subsequent Purchaser/Contesting Defendant) (Impleaded on 23.08.2012 -9- NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR
12. Mrs. Shivamma (Subsequent Purchaser.
Impleaded on 23.08.2012) Plaint Prayer: Plaint Prayer:
a. Declaring that the Plaintiffs are a. By granting Permanent Injunction restraining the absolute owners having the defendants, their men and people from lawful right, title, interest and in any way interfering with Plaintiffs peaceful possession over the Schedule possession and enjoyment of the suit Property; Schedule Property;
b. Issue perpetual Injunction a. i. Declaring the Plaintiff herein as the absolute against the Defendants, owner in lawful possession and enjoyment of restraining the Defendants, Plot No.52, Omkar Layout, situated in their men, agents, authorised Sy.No.17/2A of Ganakal Village, Kengeri representatives or any Hobli, Bangalore South Taluk as per the persons, claiming through or following measurements. (Initially suit was under them from in any way filed seeking relief of Permanent Injunction interfering with the Plaintiffs and subsequent to filing of Written lawful and peaceful possession Statement by D1 and D2, prayer was and enjoyment of the Schedule amended seeking consequential relief of Property; and declaration on 11.09.2009).
c. To grant such other order or b. Direct the Defendants to pay cost of this suit
direction, reliefs as this and
Hon'ble Court deems fit
including costs of the c. Pass such other equitable reliefs as this
proceeding, in the interest of Hon'ble Court may deem fit and proper in
justice and equity. the interest of justice and equity.
Plaint Schedule Property: Plaint Schedule Property:
All that piece and parcel of Original Plaint Schedule Property:
Agricultural land measuring an
extent of 1 Acre 05 Guntas being All that piece and parcel of the property bearing
portion of Sy.No.3/3 later Site No.52, formed in Omkarnagar Layout of
assigned with sub-division number Sy.No.3/3B, situated as Ganakal Village, Kengeri
Sy.No.3/3b as per Hissa Phodi and Hobli, Bangalore South Taluk, measuring:
Akarband of survey department
East to West: 71'+103'
(wrongly incorporated as Sy.
No.3/3B1 in revenue records for 2
some years and thereafter
discontinued) situated at
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Ganakallu Village, Kengeri Hobli, North to South: 93'+96'
Bangalore South Taluk and
bounded on the: 2
East by: Naala (Halla) Within the boundaries of:
West by: Land Sy.No.3/3A2; East by: 25 feet road,
North by: Halla; West by: 80 feet road and land of P.N.Bhat
South by: Land in Sy.No.3/3A1 North by: Land of P.N.Bhat at present
private property
South by: Land of Suresh Hegde, now
property No.53.
Amended Plaint Schedule Property: (Amended on 15.07.2008) All that piece and parcel of the property bearing Site No.52, formed in Omkarnagar Layout of Sy.No.17/2A, situated as Ganakal Village, Kengeri Hobli, Bangalore South Taluk, measuring: in East to West: 71'+103' 2 North to South: 93'+96' 2 Within the boundaries of:
East by: 25 feet road, West by: 80 feet road and land of P.N Bhat North by: Land of P.N Bhat at present private property South by: Land of Suresh Hegde, now property No.53.
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Issues: Issues:
1. Whether the Plaintiffs prove 1. Does the Plaintiff prove her lawful possession
that they are the absolute over the Schedule Property?
owners in possession of the
suit Schedule Property? 2. Does the Plaintiff prove her interference caused by the Defendant with her
2. Whether the Plaintiffs prove the possession?
interference of the Defendants? 3. What Order and Decree?
3. Whether the suit is properly Additional Issues farmed by this Hon'ble Court: valued and court fee paid is
1. Whether the Plaintiff to prove that she is in sufficient?
absolute owner in possession of the suit
4. What Order or Decree? Schedule Property?
2. Whether the Plaintiff to prove the identification of the suit Schedule Property as it was formed in Omkar Nagar Layout out of Sy. No.17/2A situated at Ganakal Village, Kengeri Hobli, Bangalore South Taluk?
3. Whether the Court Fee paid is sufficient?
4. Whether the suit of the Plaintiff is also barred by Limitation?
5. Whether the Plaintiff is entitled for relief claimed in the suit?"
What emerges from the analytical excavation is that, the two suits are founded upon different topographies - figuratively and literally.
14. What should be the ingredients of Section 10 CPC has been considered by the Apex Court in the case of NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES v. C. PARAMESHWARA reported in (2005) 2 SCC
256) wherein it is held as follows:
".... .... ....
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8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical."
(Emphasis supplied) The Apex Court notices the purport and object of Section 10 of the CPC. The High Court of Delhi in the case of AMITA VASHISHT v. TARUN VEDI reported in 2022 SCC OnLine Del 2954 considers the entire spectrum of the law and holds as under:
".... .... ....
22. As against this, Section 10 of the CPC is a somewhat drastic provision, inasmuch as it brings the trial in the later suit to a complete halt. It eviscerates, therefore, in a manner of speaking, the right of the litigant to expeditious trial. The corridors of the court not
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR being the most habitable of places, where one would choose to linger long, Section 10 is required to be construed strictly.
23. It is not necessary for this Court to enter into the niceties of the provision. As already noted, the provision has been examined in considerable detail by the Supreme Court in its decisions in NIMHANS1 and Aspi Jal4, which are regarded as authorities on the issue.
24. Para 8 of NIMHANS1 and paras 9, 11 and 12 of Aspi Jal read thus:
NIMHANS:
"8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical."
Aspi Jal "9. Section 10 of the Code which is relevant for the purpose reads as follows:
"10. Stay of suit. - No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation.--The pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action."
From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10 i.e. "no court shall proceed with the trial of any suit" makes the provision mandatory and the court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject-matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding.
*****
11. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether "the matter in issue is also directly and substantially in issue in previously instituted suits". The key words in Section 10 are "the matter in issue is directly and substantially in issue in the previously instituted suit". The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit,
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.
12. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what "the matter in issue" exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue."
(Emphasis supplied)
25. No doubt, both the decisions have underscored, as a "fundamental test", for the purposes of Section 10 of the CPC, being whether, on a final decision reached in the previous suit, such decision would operate as res judicata in the subsequent suit. Even so, both the decisions go on to observe that, in order for Section 10 to be applied, there must be complete identity of subject matter in both suits. It has been emphasized, in both the decisions, that the key expression in Section 10 are "directly and substantially in issue", which have been contra- distinguished from the expression "incidentally or collaterally in issue".
26. "Therefore", as held in both the decisions "Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject matter in both the proceedings is identical".
27. This aspect stands further clarified in Aspi Jal. In para 9 of the report in Aspi Jal, the Supreme Court has held that "the basic purpose and the underline object of Section 10 of the Code is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of "same cause of action, same subject matter and the same relief." As a result, the effort, as per the said
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR decision, as "to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendants from multiplicity of proceedings".
28. Interestingly, in Aspi Jal, the parties in all suits were the same. The courts in which the earlier suits had been instituted were competent to grant the relief sought in the latter suit. Even so, the Supreme Court observed that the issue remained to be adjudicated "as to whether the matter in issue is also directly and substantially an issue in previously instituted suit". Underscoring, once again, the importance of the expression "directly and substantially in issue", the Supreme Court went on to hold that, even if "many of the matters in issue are common, including the issue of whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code the entire subject matter of the two suits must be the same". It was categorically held that Section 10 "will not apply where a few of the matters are common and will apply only when the entire subject matter of the controversy is same".
29. Given the rigidity of this test, the fate of the present petition - and, indeed, of the petitioner's application under Section 10 - was pre-ordained.
... ... ...
32. Neither cause of action, nor subject matter, of the two suits, can be said to be the same. The cause of action in CS SCJ 612321/2016 related to the validity of the Sale Deed dated 22nd November 2003. The challenge was predicated on a Will dated 9th May 2000, purportedly executed by KK Vedi, bequeathing all his movable and immovable properties in favour of Sudershan Vedi, the mother of the parties in the present case. That Will forms no part of the cause of action in CS DJ 699/2021. Predicated on the said Will, Sudershan Vedi claimed, in CS SCJ 612321/2016, to be the sole, absolute and exclusive owner of the suit property. She also claimed to have executed the Sale Deed dated 22nd November 2003 as the General Power Attorney holder of KK Vedi, on account of fraud perpetrated by the respondent. It is further alleged, in the said plaint, that, when Sudershan Vedi went to the office of Sub- Registrar to execute a Will, Tarun Vedi, by fraud, made a sale deed in his favour.
33. "Cause of action" is defined in various decisions of the Supreme Court, as the bundle of facts which a plaintiff would be required to prove in order to obtain a decree in his favour. Kusum Ingots & Alloys Ltd. v. U.O.I. explained the concept thus:
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR "6. Cause of action implies a right to sue. The material facts which are imperative for the suitor to allege and prove constitute the cause of action. Cause of action is not defined in any statute. It has, however, been judicially interpreted inter alia to mean that every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Negatively put, it would mean that everything which, if not proved, gives the defendant an immediate right to judgment, would be part of cause of action.
Its importance is beyond any doubt. For every action, there has to be a cause of action, if not, the plaint or the writ petition, as the case may be, shall be rejected summarily."
(Emphasis supplied) The High Court of Delhi holds that the basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, same subject matter and same relief.
15. Long before the judgment of the High Court of Delhi, the Andhra Pradesh High Court in the case of M. VENKATA RATNA REDDY v. V. MOHAMMED REDDY reported in 2003 SCC OnLine AP 1057, has held as follows:
".... .... ....
6. Now it is necessary to examine Section 10 of C.P.C. and the relevant portion is extracted as under for ready reference:
"No Court shall proceed with the trial of any suit in which the matter in suit between the same parties, or between parties under whom they are or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation:......."
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7. From the above section, it is clear that no court shall proceed with the subsequent suit if the following conditions are satisfied:
(a) The issue involved in the earlier suit must be directly and substantially in issue in the later suit;
(b) Both the suits must be between the
same parties or their
representatives; and
(c) The earlier suit, which is pending
must be instituted in any court
having jurisdiction to grant the relief claimed.
8. Now it is necessary to examine the facts and circumstances of the case to find out whether the three conditions stipulated under Section 10 of C.P.C. are satisfied in order to stay the present suit.
... ... ...
13. Furthermore, the suit schedule property in both the suits is also not one and the same, and of course only one item i.e., item No. 2 of the earlier suit relating to Ac. 1.25 cents is one among three items in the plaint schedule property of the later suit.
14. Therefore, the rights of all the parties in both the suits are different and the subject matter of the suits is also not entirely common.
15. Therefore, in my considered view, all the conditions prescribed under Section 10 of C.P.C. are not satisfied in order to apply the prohibition contained in the said section.
16. In the decision relied on by the counsel for the plaintiff petitioner, a learned Single Judge of this Court under similar circumstances in K. Satyanarayana v. P. Veeraju [1996 (1) ALT 177.] relying on various judgments held at paragraph No. 7 that:
"There is no doubt that certain common issues do arise in both the suits but as already pointed out supra for Sec. 10 C.P.C. to apply, there must be
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR identity of subject matter and mere fact that one of the questions in issue is the same as in the other suit would not make the subject matter identical. If that is so, the provisions of Section 10 CPC are not attracted to the facts of the case and the application filed by the defendants under Section 10 CPC should be held to be incompetent."
17. Coming to the case on hand, as already pointed out, the subject in issue in both the suits is identical only with regard to one item of the properties mentioned in the schedules in both the suits. All the issues and parties in both the suits are also not common. That apart, the relief sought in both the suits is also different. As already pointed out, which is the substantial question and which is the incidental question in both the suits, with regard to title or possession is not yet decided and both the suits are pending at different stages.
18. Further significant factor to be noted is that, the defendants allowed the trial of the later suit to go on, and only at the stage of arguments, the present application is filed. In my considered view, this application is definitely at the belated stage. It is also to be noted that, when the defendants have the knowledge that the issues in the earlier suit and the later suit are common in all fours, proper application under Section 10 of C.P.C. could and should have been made at the threshold.
19. Apart from the above legal position, as already pointed out, the conduct of the defendants in filing the present I.A. at the fag end of the trial cannot be appreciated."
(Emphasis supplied) The precedential compass as held by the Apex Court and the judgments of High Courts of Andhra Pradesh and Delhi as noted supra, leads to an unmistakable inference that an application under Section 10 of the CPC can be considered, if three cumulative conditions are met - (1) the issues in both the suits must be directly and substantially the same; (2) the parties must be the same or litigating under the same title; and (3) the earlier suit must be in a competent Court. The case at hand nowhere meets the ingredients of Section 10,
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR which would be identity identical to cause, parties and subject.
16. In view of invoking the jurisdiction of this Court on the aforesaid plea, without divulging the proceedings instituted by the petitioner before concerned Courts, all of which are narrated hereinabove, the petition deserves to be dismissed, as the petitioner having remained quiescent for 18 years and having allowed the trial to mature to its final phase, cannot now seek refuge, that the law does not extend. The dismissal cannot be without mulcting the petitioner with exemplary costs of ₹50,000/- to be payable by the petitioner, to the respondents/plaintiffs."
This Court considered the parameters of application of Section 10 of CPC while seeking arrest of a particular suit and held that the two suits must be figuratively and literally the same. It is ununderstandable as to how the petitioner can contend that a suit for eviction and mesne profits could be the same, as the suit for partition and separate possession, to seek stay of the suit.
9. In the light of the judgment of this Court quoted supra, if the order of the concerned Court rejecting the application is noticed, it does not brood any perversity or error, apparent for this Court to entertain and interfere with the proceedings in
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NC: 2025:KHC:37469 WP No. 2955 of 2024 HC-KAR O.S.No.46 of 2022, in exercise of its jurisdiction under Article 227 of the Constitution of India.
The petition lacking in merit, stands dismissed. Interim order of any kind subsisting shall stand dissolved. The concerned Court shall endeavour to conclude the subject suit, within an outer limit of 4 months from the date of receipt of the copy of this order.
Sd/-
(M.NAGAPRASANNA) JUDGE BKP List No.: 2 Sl No.: 6