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Judgment
M. Venugopal, J.—The revision petitioner/respondent/plaintiff has filed this present civil revision petition as against the order dated
11.9.2008 in I.A. No. 12255 of 2008 in O.S. No. 2036 of 2008 passed by the XII Assistant Judge, City Civil Court, Chennai in allowing the
application filed by the respondent/petitioner/defendant u/s 10 of CPC to stay the proceedings.
The trial Court, while passing orders in I.A. No. 12255 of 2008 in O.S. No. 2036 of 2008 has inter alia opined that '' in the earlier suit for
injunction in respect of the suit property the trial Court incidentally went into the question of title and found that the petitioner herein was the owner.
This decision was upset in the appeal. But the second appeal is pending. The matter in issue in that suit is substantially in issue in this suit also and
has resultantly allowed the said application.
The learned Counsel for the revision petitioner/respondent /plaintiff contends that order passed by the trial Court in allowing I.A. No. 12255 of
2008 is materially irregular when the relief sought for in the suit and the relief sought for in the second appeal are completely different from each
other and that the trial Court has not taken note of the fact that O.S. No. 6957 of 1994 has been filed for bare injunction on the file of XVI
Assistant Judge, City Civil Court, Chennai relating to the property situate at Door Nos. 73 and 74 , LDG Street,Little Mount,Chennai -15 filed by
the respondent/petitioner/ defendant and the suit for mandatory injunction and permanent injunction in O.S. No. 4777 of 1997 on the file of XVII
Assistant Judge, City Civil Court, Chennai relating to the suit property at door No. 74, L.D.G.Street, Little Mount, Chennai-15 filed by the
revision petitioner herein and that the respondent /petitioner/defendant has not mentioned about the Judgment delivered in O.S. No. 4777 of 1997
and the pending A.S. No. 320 of 2006 in I.A. No. 12255 of 2008 and moreover the relief sought for in O.S. No. 2036 of 2008 is for recovery of
possession but the relief sought for in O.S. No. 6957 of 1994 is only for bare injunction and this aspect of the matter has not been looked into by
the trial Court in a proper perspective and that the trial Court has erred in observing that the matter in issue in the suit in O.S. No. 6957 of 1994
and the present suit in O.S. No. 2036 of 2008 are substantially one and the same and therefore prays for allowing the civil revision petition in the
interest of justice.
Per Contra, the learned Counsel for the respondent /petitioner/defendant submits that the trial Court has passed a reasoned order in I.A. No.
12255 of 2008 and the trial Court has come to the conclusion that the matter in issue in O.S. No. 6957 of 1994 and the present suit in O.S. No.
2036 of 2008 are not substantially same and therefore prays that this Court may not interfere with at this stage sitting in revision.
It is relevant to point out that the respondent/ petitioner/defendant in I.A. No. 12255 of 2008 has inter alia stated that the revision
petitioner/respondent/plaintiff and another has preferred A.S. No. 448 of 2006 on the file of IV Additional Judge, City Civil Court, Chennai
against the Judgment and decree passed in O.S. No. 6957 of 1994 and that in the appeal, the first appellate Court has held that the respondent/
defendant and her mother-in-law has got lease hold right over the suit land and title over the superstructure standing thereon by means of Judgment
and decree dated 7.8.2007 and the second appeal in S.A. No. 213 of 2008 has been preferred by the respondent/petitioner/defendant which is
pending before this Court and taking advantage of the findings rendered in A.S. No. 448 of 2006, the revision petitioner/plaintiff has filed the suit in
O.S. No. 2036 of 2008 for delivery of vacant possession of the suit property to the plaintiff after removing super structure and for damages and
for permanent injunction restraining the defendant or her agents,men from alienating,encumbering, subletting or transferring the suit property in
favour of any third parties and since the main issues in both the suits are one and the same, the application filed for staying all further proceedings of
the suit in O.S. No. 2036 of 2008 may be allowed.
In the counter filed by the revision petitioner/respondent /plaintiff among thing mentioned it is inter alia stated that the relief sought for in the two
suits in O.S.Nos.6957 of 1994 and 4777 of 1997 are not distinct in nature and more over the relief sought for in O.S. No. 2036 of 2008 is
entirely different and that the suit property is also different to that of the suit property mentioned in O.S. No. 4777 of 1997 and in O.S. No. 4777
of 1997, the relief is prayed for in regard to the adjacent property of the suit property and the relief sought for in O.S. No. 6957 of 1994 filed by
the respondent/defendant is only for bare injunction and that the present suit in O.S. No. 2036 of 2008 is a comprehensive one particularly in
regard to the declaration of title to the suit property and therefore prays for dismissal of the said application.
The learned Counsel for the revision petitioner in support of his contention that both the suits are different and not substantially similar or
identical relies on the decision reported in Pukhraj D. Jain and Others Vs. G. Gopalakrishna, wherein the Hon''ble Supreme Court has observed
that ''Mere filing of application for stay of suit does not put embargo on power of Court to examine merits of case and that Section 10 merely
enacts rule of procedure and decree passed in contravention of such rule of Procedure u/s 10 is not rendered nullity and further that the Court has
to decide what will be the best course to be adopted for expeditious disposal of suit and not to keep suit pending which has been instituted with
oblique motive and to cause harassment to other side''.
He also cites the decision in K.V. Subramanian v. Pattabi Bhagavathar 1998 (3) MLJ 421 wherein this Court has held that ''Issues involved
were not directly and substantially in issue and therefore stay of subsequent suit pending appeal against the decree in first suit, held not
maintainable.
Yet another decision is relied on the side of the revision petitioner is Vee Cee Yes Granites Chennai Vs. Central Bank of India, wherein this
Court has inter alia held that ''the matter in issue between the same parties must directly or substantially the same and on the other hand factually
the parties are different, the issues are different and consequently, it cannot be said that the matter in issue is directly or substantially the same''.
He also presses into service the decision reported in Chinna Nachiappan v. PL. Lakshmanan 2007 (4) CTC 70 wherein this Court has held
that'' When plaint itself refers to serious title disputes between plaintiff and the defendant, plaintiff cannot seek for a bare permanent injunction and
ought to pray for declaration of title also and that the suit is held bad for absence of prayer for declaration of title''.
Added further he also relies on the decision reported in Karuneegar Sangam Vs. The Tahsildar, Tiruvannamalai, The Revenue Divisional
Officer, Tiruvannamalai, The Collector of North Arcot, Vellore, The Municipal Commissioner, Municipal Office, Tiruvannamalai, Saradhammal,
Radhakrishnan, Chinnaiyan, Vijaya, Sampath Lakshmi, Uma Maheswari and Sampoornam, wherein this Court has held that'' The main test for
applicability of Section 10 is the final decision reached in the earlier suit should operate as res judicata to the subsequent suit and on facts held,
though there is some relation between both suits, it is not sufficient enough to attract Section 10''.
He also draws the attention of this Court to the decision in British Indian Corporation Ltd. Vs. Rashtraco Freight Carriers, wherein the
Hon''ble Supreme Court has held that'' Cause of action for both suits are entirely different and no common issue directly or substantially in issue in
both suits and later suit filed by consignor cannot be stayed u/s 10 CPC''.
It is pertinent to point out that in the Judgment passed in O.S. No. 6957 of 1994 by the XVI Assistant Judge, City Civil Court, Chennai filed
by the respondent as plaintiff, the trial Court has come to the conclusion that ''the plaintiff is the owner of the suit properties as per Exs A2 and A3
and therefore resultantly has granted the relief of permanent injunction. As against the said Judgment and decree passed in O.S. No. 6957 of 1994
dated 23.11.2004 passed by the XVI Assistant Judge, City Civil Court, Chennai, A.S. No. 448 of 2006 has been filed by the Church of Our
Lady of Health rep by its Parish Priest /revision petitioner as appellants and the first appellate Court vide in his Judgment dated 7.8.2007 has inter
alia come to the conclusion that'' the plaintiff and her predecessor are in exclusive possession of the suit property comprised of Schedule A and B
and therefore she has got lease hold right over the suit property and further that the plaintiff is entitled for an order of permanent injunction
restraining the defendants or their men from interfering with the peaceful possession and enjoyment of the land except due process of law. As
against the first appellate Court''s Judgment in A.S. No. 448 of 2006, the respondent/defendant has preferred the second appeal in S.A. No. 213
of 2008 before this Court and the same is pending.
It is to be noted for determining whether the matter in issue in the subsequent projected suit is directly or substantially in issue in the previously
instituted suit, absolutely identity of the parties in both the suits is not a prerequisite factor. The words ''directly or substantially in issue '' are
employed in contrary distinct to the words ''incidentally or collateral'' in issue. Therefore this means that Section 10 of CPC would apply only if
there is identity of the matter in issue in both the suits amounting that the whole gamut of the subject mater in both proceedings is one and same
identity and not merely one of the many issues arising for consideration before the Court of law in the considered opinion of this Court.
On a careful consideration of the respective contentions advanced on either side and on cumulative assessment of the facts and situation of the
case, this Court is of the considered view that in a suit for permanent injunction in respect of the suit property in O.S. No. 6957 of 1994, the trial
Court has come to the conclusion that the respondent/plaintiff is the owner, though the same has been modified in an appeal, still the matter is
pending adjudication by this Court in S.A. No. 213 of 2008. Though the plea is raised on behalf of the revision petitioner that the present O.S.
No. 2036 of 2008 is a comprehensive one, a perusal of the plaint indicates that the prayer has been sought for for directing the
respondent/defendant to deliver vacant possession of the suit property to the plaintiff after removing the superstructure subsequent thereon etc., In
O.S. No. 2036 of 2008 pending on the file of XII Assistant Judge, City Civil Court, Chennai, the suit properties mentioned as old Door No. 73
new Door No. 143 and Old Door No. 74, New Door No. 145 L.D.G.Street,Little Mount, Chennai-15.
Suffice it for this Court to point out at this stage that in a suit for injunction filed in respect of the suit property, since the trial Court has given a
finding that the respondent/plaintiff is the owner and that has been modified in an appeal, over which the second appeal is pending, this Court is of
the considered view that the present suit O.S. No. 2036 of 2008 is to be stayed u/s 10 of CPC and that the parameter mentioned u/s 10 of CPC
for staying the subsequent suit squarely applies to the present case on had and in that view of the matter, the order passed by the trial Court is
proper one and resultantly the civil revision petition fails and the same is hereby dismissed.
In result, this civil revision petition is dismissed and the order passed by the trial Court in I.A. No. 12255 of 2008 in O.S. No. 2036 of 2008 is
affirmed by this Court for the reasons assigned in this revision. There shall be no order as to costs. Consequently, connected M.P. No. 1 of 2008
is also dismissed.