JUDGMENT : 1. Rule. Mr.Mahendra K.Patel, learned advocate, waives service of notice of Rule for the respondent. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally. 2. The challenge in this petition under Articles 226 and 227 of the Constitution of India, is to the order dated 12.09.2013, passed by the learned Civil Judge (S.D.), Patan (“the Trial Court”), in Special Civil Suit No.40 of 2010, whereby the application of the petitioner at Exh.26, under the provisions of Section 10 of the Code of Civil Procedure, 1908 (“the Code” for short), has been rejected. 3. The memorandum of the petition is devoid of the relevant facts, therefore, this Court has garnered the bare facts from the documents on the record of the petition. 4. The petitioner instituted Regular Civil Suit No.138 of 2010, in the Court of the learned Principal Senior Civil Judge, Jamnagar, for recovery of Rs.78,826/-, against the present respondent, with 18% interest. In the said suit, it is the case of the petitioner that he was on very good terms with the respondent, who was his neighbour. The respondent faced grave financial losses in his business, which led to several legal proceedings. Further, there was a great deal of pressure upon the respondent from his creditors, and he feared that he would be physically harmed. The respondent, therefore, quietly left Jamnagar, one night. It is further the case of the petitioner that the respondent executed a Power of Attorney in favour of the petitioner,in order to sell the land belonging to the respondent, at Revenue Survey No.155/1, Aliya, to enable him to pay off his debts. On 06.08.2009, the petitioner and the respondent went to the office of the Sub-Registrar and the respondent sold the above-mentioned property to one Rajak Osman Kar, a resident of Jamnagar, for a sale consideration of Rs.25,00,000/-. According to the petitioner, thereafter the respondent went from the spot in a closed car, in order to avoid detection. Thereafter the petitioner, the confirming party and the advocate had the sale registered at the office of the Sub-Registrar vide serial number 5168, dated 06.08.2009. According to the petitioner, thereafter the respondent went from the spot in a closed car, in order to avoid detection. Thereafter the petitioner, the confirming party and the advocate had the sale registered at the office of the Sub-Registrar vide serial number 5168, dated 06.08.2009. It is further the case of the petitioner in his suit, that the respondent had to pay various debts plus the stamp duty on the registration of the land, which amounted to Rs.25,78,826/-. Out of love and affection, the petitioner lent the respondent an amount of Rs.78,826/-on 08.08.2009, in order to enable him to meet the shortfall over and above the amount of Rs.25,00,000/-. To the surprise of the petitioner, on 02.03.2010, the respondent sent a notice to the petitioner to return the amount of Rs.25,00,000/-which was the sale consideration for the land sold by the respondent through the petitioner, being his Power of Attorney. This notice was replied to by the petitioner on 17.03.2010. In the reply, the petitioner asserted that the respondent owed him an amount of Rs.78,826/-, therefore, he should withdraw the notice. When the respondent did not return the money or withdraw the notice, the petitioner was constrained to institute the above- mentioned suit on 05.04.2010. 5. The respondent herein then preferred Special Civil Suit No.40 of 2010, before the learned Principal Senior Civil Judge, Patan, in the month of July, 2010, praying that the petitioner be directed to pay him the amount of Rs.27,72,789/-(with interest). It is asserted by the respondent in the said suit that the petitioner and he were neighbours and good friends, sharing a very close relationship. Due to the good relations between them, the respondent had conferred a Power of Attorney upon the petitioner to sell the land belonging to him, bearing Revenue Survey No.155/1. The sale was necessary, due to certain financial problems that had arisen from losses in business. As the creditors were harassing the respondent, he had no other option but to sell the said land. It is further asserted by the respondent that the petitioner received an amount of Rs.25,00,000/- towards the sale consideration for the land in question on his behalf, as his Power of Attorney. The petitioner has also signed a receipt acknowledging the said amount. Though the respondent repeatedly requested the petitioner to hand over the money to him, along with accrued interest, the petitioner did not do so. The petitioner has also signed a receipt acknowledging the said amount. Though the respondent repeatedly requested the petitioner to hand over the money to him, along with accrued interest, the petitioner did not do so. It is the case of the respondent in the said suit, that the petitioner has cheated him by not handing over to him the amount received by him towards the sale consideration of the land on his behalf as Power of Attorney. 5.1 The respondent sent a notice dated 2-3-2010, to the petitioner, asking him to return the money, before initiating any criminal proceedings. However, the petitioner gave an absolutely false reply to the notice and instead of acknowledging that he has to pay the respondent Rs.25,00,000/-, he has fabricated an amount of Rs.78,826/-as being due to him, from the respondent. Under the circumstances, the respondent had no other option but to institute the above- mentioned suit. 6. In the above factual background the petitioner, who is the original defendant in Special Civil Suit No.40 of 2010, preferred by the respondent herein, made an application at Exh.26, under Section 10 of the Code, for stay of the suit. This application has been rejected by the Trial Court on the ground that the causes of action in the suits preferred by the petitioner and the respondent, respectively, are not the same. Aggrieved by the impugned order dated 12.09.2013, passed by the Trial Court at Patan, the petitioner is before this Court. 7. Mr.Sunit S.Shah, learned advocate for Mr.N.V. Gandhi, learned advocate for the petitioner, has submitted that if the plaints in both the suits are examined, it would be evident that the causes of action in both the suits are the same. The suit instituted by the petitioner is prior in point of time. The suits have been filed on the same set of facts and the matter in issue is directly and substantially in issue in both the suits, which are between the same parties. The Trial Court,therefore, ought to have stayed the suit preferred by the respondent. 7.1 It is further submitted that the respondent has preferred the suit at Jamnagar, only as a defence and a counter-blast to the suit instituted by the petitioner. The Trial Court had found the subject matter to be the same in both the suits. The Trial Court,therefore, ought to have stayed the suit preferred by the respondent. 7.1 It is further submitted that the respondent has preferred the suit at Jamnagar, only as a defence and a counter-blast to the suit instituted by the petitioner. The Trial Court had found the subject matter to be the same in both the suits. However, it has declined the prayer made by the petitioner for stay of the suit filed by the respondent, on the ground that the causes of action are different. The transactions from which both the suits have arisen are the same, therefore, the Trial Court was not justified in rejecting the application of the petitioner. 7.2 It is next submitted that the respondent has not filed any reply to the application made by the petitioner, nor has he filed an affidavit-in-reply to the present petition. Therefore, it may be taken to mean that he has no valid defence. 7.3 Learned advocate for the petitioner has further contended that if both the suits are permitted to proceed there may be an inconsistency in the verdicts, therefore, it would be prudent to stay the second suit, filed later in point of time, by the respondent. 7.4 In support of the above submissions, learned advocate for the petitioner has placed reliance upon the following judgments: (1) National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, reported in AIR 2005 SC 242 (2) Kanulal Krishnalal Trivedi Vs. Karanlal Krishnalal Trivedi reported in 1997 (3) GLR 1948 8. On the other hand, Mr.Mahendra K.Patel, learned advocate for the respondent, has supported the impugned order by submitting that both the suits are different, inasmuch as the causes of action are different. As per the suit filed by the petitioner, the respondent has borrowed money from him for paying his debts, whereas, in the suit filed by the respondent, this is not the cause of action. The said suit has been filed against the petitioner, who has received the sale consideration for the sale of land as the Power of Attorney holder of the respondent, but has not handed it over to the respondent. It is submitted that the respondent issued a notice dated 02.03.2010 to the petitioner, calling upon him to make the payment of Rs.25,00,000/-that he has received as the sale consideration on behalf of the respondent. It is submitted that the respondent issued a notice dated 02.03.2010 to the petitioner, calling upon him to make the payment of Rs.25,00,000/-that he has received as the sale consideration on behalf of the respondent. It is only after the receipt of this notice that the petitioner has filed the suit on 05.04.2010, on the false premise that the respondent owes him an amount of Rs.78,826/-. Though the petitioner has filed the suit first in point of time, however, as rightly held by the Trial Court, there are different causes of action in both the suits .It is, therefore, submitted on behalf of the respondent that the impugned order is just and proper,and the interference of this Court is not called for. 9. This Court has heard learned counsel for the respective parties at length, perused the contents of the impugned order and other documents on record. It may be fruitful, at this stage, to refer to the provisions of Section 10 of the Code, which are reproduced hereinbelow: “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.” 10. While making submissions, learned advocate for the petitioner has placed reliance upon National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara (Supra), wherein the object underlying Section 10 is delineated. The relevant quotation from the said judgment is as follows: “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 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.” 11. Thus, it is seen that the object and purpose underlying Section 10 is to prevent Courts from simultaneously trying two parallel suits between the same parties, in respect of the same subject matter in issue, which situation may give rise to conflicting findings. As held by the Supreme Court the fundamental test to attract the applicability of Section 10 of the Code is whether the final decision arrived at in the previous suit would operate as res judicata in the subsequent suit. It has also been held by the Supreme Court that Section 10 applies only in cases where the whole of the subject matter, in both the suits, is identical. The matter should be “directly and substantially in issue” and not “incidentally and collaterally in issue.” 12. The second judgment cited by the learned advocate for the petitioner Kanulal Krishnalal Trivedi Vs. Karanlal Krishnalal Trivedi (Supra), is not relevant, therefore, it is not being discussed. 13. In Aspi Jal Vs. The matter should be “directly and substantially in issue” and not “incidentally and collaterally in issue.” 12. The second judgment cited by the learned advocate for the petitioner Kanulal Krishnalal Trivedi Vs. Karanlal Krishnalal Trivedi (Supra), is not relevant, therefore, it is not being discussed. 13. In Aspi Jal Vs. Khushroo Rustom Dadyburjor reported in (2013) 4 SCC 333 , the Supreme Court has, after noticing its earlier decision in the case of National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara (Supra) proceeded to hold as below: “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 a 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, 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. 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 a 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. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case.” (emphasis supplied) 14. As explained by the Supreme Court hereinabove, the whole of the matter in issue in both the suits has to be directly and substantially in issue in the previously instituted suit, and not incidentally and collaterally in issue. This, therefore, means that the entire subject matter of the said suit must be the same. Section 10 would not be attracted where a few of the matters in issue are common but would apply when the whole of the subject matter in issue is identical. 15. In Aspi Jal V. Khushroo Rustom Dadyburjor (Supra), the appellant-plaintiff had filed three suits for eviction, on different causes of action. As the third suit was filed during the pendency of the first two suits, the respondent-defendant moved an application for stay of the proceedings under Section 10 of the Code. Considering the application, the Trial Court stayed the third suit till the final disposal of the first and second suit. As the third suit was filed during the pendency of the first two suits, the respondent-defendant moved an application for stay of the proceedings under Section 10 of the Code. Considering the application, the Trial Court stayed the third suit till the final disposal of the first and second suit. The High Court had confirmed the stay on the third eviction suit. However, the Supreme Court allowed the appeal and set aside the order of the High Court. One of the grounds for doing so, was that though the ground for eviction in all the three suits were the same, but the suits were based on different causes of action. 16. In the present case as well, the conclusion of the Trial Court that the suits are based on different causes of action, would hold good. In the suit instituted by the petitioner, prior in point of time, the prayer is for recovery of Rs.78,826/- which, according to the petitioner, was borrowed by the respondent for the payment of his dues, which exceeded the amount of Rs.25,00,000/- realised through the sale of land. The cause of action in the said suit is, therefore, the recovery of money allegedly given by the petitioner to the respondent due to friendly relations between them, in order to cover the shortfall even after the sale of land, so as to enable the respondent to pay his debts. In the suit filed by the respondent, the cause of action is different, inasmuch as the respondent claims that the petitioner, who is his Power of Attorney through whom the land was sold, has received the amount of Rs.25,00,000/- towards sale consideration of the land on behalf of the respondent, but has not handed over the amount to him, in spite of repeated requests. There is, therefore, no identity of the subject matter as a whole. The sale of the land of the respondent may be a common incident in both the suits but it is only incidentally and collaterally in issue. The amount allegedly given by the petitioner to the respondent was over and above the sale proceeds of the land, according to the petitioner. This is the matter which is directly in issue in the suit of the petitioner. The amount allegedly given by the petitioner to the respondent was over and above the sale proceeds of the land, according to the petitioner. This is the matter which is directly in issue in the suit of the petitioner. The respondent does not acknowledge this claim of the petitioner but states that the petitioner, acting as his Power of Attorney, has not handed over the entire sale proceeds of the land sold on his behalf. This is the issue which is directly and substantially in issue in the suit filed by the respondent. The causes of auction in both the suits are, therefore, different. 17. In view of the above factual aspect of the matter, it cannot be said that the whole of the subject matter in both the suits is identical or that the matter in issue in the suit filed by the respondent is also directly and substantially in issue in the previous suit instituted by the petitioner. 18. If the suit of the petitioner is finally decided, the decision would not operate as res judicata in the subsequent suit filed by the respondent, as the claim of the respondent is for the sale proceeds of the land sold by the petitioner on his behalf, whereas the petitioner claims an amount allegedly borrowed by the respondent, that has nothing to do with the sale proceeds of the land. The sphere in which both the suits operate are different. The difference may be subtle, but in the view of this Court, it is a distinct one. The case of the petitioner would not succeed if the fundamental test to attract Section 10 of the Code is applied. 19. In Pukhraj D. Jain vs. G. Gopalakrishna reported in (2004) 7 SCC 251 , the Supreme Court has held as below: “4. We have heard learned counsel for the parties and have perused the records. In our opinion, the view taken by the High Court is wholly erroneous in law and must be set aside. The proceedings in the trial of a suit have to be conducted in accordance with provisions of the Code of Civil Procedure. We have heard learned counsel for the parties and have perused the records. In our opinion, the view taken by the High Court is wholly erroneous in law and must be set aside. The proceedings in the trial of a suit have to be conducted in accordance with provisions of the Code of Civil Procedure. Section 10 CPC no doubt lays down 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 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. However, mere filing of an application under section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter. The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the court as to how the proceedings should be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of parties. However, where subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side.” (emphasis supplied) 20. Applying the above principles of law to the present case, it transpires that after examining the factual conspectus of both the suits, the Trial Court has arrived at a conclusion that even though the subject matter of the suits (the land in question) may be the same, there are different causes of action, therefore, there is no ground to justify the stay of the suit instituted by the respondent. No fault can be found with the conclusion arrived at by the Trial Court, though this Court would not even go to the extent of saying that the subject-matter of the suits is the same. The sale of the land in question is an incidental and collateral issue in the suit of the petitioner but a direct and substantial issue in the suit instituted by the respondent. The order under challenge, therefore, does not suffer from any illegality or jurisdictional error, so as to warrant interference from this Court. 21. For the aforestated reasons, the petition fails and is rejected. Rule is discharged. There shall be no orders as to costs.