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Judgment
Ravi K. Deshpande, J.—Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. The challenge in this Petition is to the order dated 19th January 2013 passed by the learned Judge-City Civil Court allowing the Notice of Motion No. 1685 of 2009 and staying L.C. Suit No. 104 of 2008 u/s 10 of the Code of Civil Procedure, 1908.
Section 10 of the CPC is reproduced as under:-
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.
Perusal of the aforesaid provision shows that the question as to whether the matter in issue is also directly and substantially in issue in a previously instituted suit can be determined only after the issues are framed in both the suits. Unless such issues are framed, the application u/s 10 of the CPC for stay of the suit cannot be entertained. The issues in L.C. Suit No. 104 of 2008 have not yet been framed, and hence, the Court ought not to have entertained the Notice of Motion No. 1685 of 2009. The impugned order cannot therefore be sustained. The same needs to be quashed and set aside on that count alone.
In the result, the Writ Petition is allowed.
The order dated 19.01.2013 passed by the learned Judge, City Civil Court, Mumbai allowing the Notice of Motion No. 1685 of 2009 is hereby quashed and set aside.
The Notice of Motion No. 1685 of 2009 is dismissed.
Rule is made absolute in the aforesaid terms, with no order as to costs. It is made clear that after framing all issues, it will be open for the parties to file such application if it is so advised and it shall be decided by the Court in accordance with law without being influenced by any of the observations made in this order.