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2008 DIGILAW 738 (AP)

K. Venkata Swamy v. Sakina Bee

2008-09-06

G.V.SEETHAPATHY

body2008
ORDER This civil revision petition is directed against the order dated 4-7-2007 in I.A. NO.229 of 2007 in O.S. No 41 of 2005, on the file of the Senior Civil Judge, Gadwal, wherein the application, filed by respondents/ defendants under Section 10 CPC, was allowed and further proceedings in O.S. No.41 of 2005 were stayed till the disposal of O.S. NO.16 of 2005. 2. Heard both sides. Perused the records. 3. The revision petitioners are plaintiffs in O.S. No.41 of 2005, filed for declaration that they are the absolute owners of the plaint schedule property and for recovery of possession. The respondents herein previously instituted O.S. NO.16 of 2005 for declaration that the registered sale deeds executed by the petitioners herein are inoperative. 4. It is not disputed that both the suits are between the same parties and in the same Court and relate to the same property. The earlier suit O.S. NO.16 of 2005 is for cancellation of the sale deeds and the subsequent suit O.S. No.41 of 2005 is for declaration of title and for recovery of possession in respect of the same property. In fact, the subsequent suit for declaration and recovery of possession i.e., O.S. No.41 of 2005 is more comprehensive in nature. However, the learned Senior Civil Judge ordered stay of further proceedings in the said suit under Section 10 CPC, till the disposal of O.S. NO.16 of 2005, on the ground that the matter in issue in the latter suit is directly and substantially in issue in the earlier suit. In fact, the interest of justice would require that both the suits are tried together and disposed of. 5. The learned counsel for the respondents seeks to rely on a decision in Madala Siva Kasirathna Prameela Rani and another v. Ambati Janardhana Rao and others1 wherein this Court held that the language of Section 10 is quite clear and it mandates the Court before which the subsequently instituted suit, is pending not to proceed with the trial of such suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. The above decision is not applicable to the facts of the present case for the simple reason that in the above case the t",'o suits were instituted in two different courts and it was held that an application under Section 1 0 of the Code should be made before the Court where the subsequent suit is pending. In fact, the application under Section 1 0 CPC was dismissed in the above case holding that the identity of subject matter in the earlier and subsequent suit is disputed and all the issues in both suits must be the same and the provision cannot be invoked if only one of the questions in issue is same. 6. In Cholamandalam Investments and Finance Company Private Limited v. Radhika Synthetics the Supreme Court in a case where one suit was filed at Bombay six months after filing of the suit at Madras and involving common issues held that the "two courses are open i.e. to transfer the Bombay suit to Madras to be tried along with the latter or to stay the Bombay suit under Section 10 CPC till the disposal of the Madras suit. In order that all the issues are finally thrashed out by and between the parties and the litigation is not unnecessarily and unduly protracted, the first course of action commends us." 7. In the present case also, having regard to the fact that both the suits are pending before the same Court and both of them are between the same parties and in respect of same subject matter, instead or ordering stay of the latter suit under Section 10 CPC, it is considered just and proper to direct disposal of both the suits together so that all the issues can be finally thrashed out and further protraction of the litigation can be avoided. 8. In that view of the matter and following the observation made by the Apex Court in the above decision, the impugned order, directing stay of O.S. No.41 of 2005 till the disposal of O.S. No.16 of 2005, is set aside with a direction that both the suits be tried and disposed of together in accordance with law. 9. In the result, the civil revision petition is disposed of. No order as to costs.