JUDGMENT / ORDER : 1. By way of this writ petition, the defendants-petitioners have assailed the order dated 16/09/2015 passed by the Additional Sr. Civil Judge & Additional Chief Judicial magistrate No.1, Jaipur District, Jaipur (herein after referred to as ‘trial court’) in Civil Suit No.49/2013 (62/2000) whereby the application moved by the defendants-petitioners under Section 10 CPC has been rejected. 2. The brief facts, which need to be noted for disposal of the present writ petition, are that the defendants-petitioners had earlier filed a suit on 19/08/1999 for declaration and cancellation of adoption deed dated 25/01/1962 whereby the defendant-Bheru allegedly was said to have been adopted and gone into adoption to Mahadev. The said suit came to be decreed ex-parte vide judgment dated 25/04/2003 and the adoption deed dated 25/01/1962 was cancelled. 3. The respondents, who were heirs of Bheru and his son, who expired during pendency of the suit on coming to know of the ex-parte decree, filed two applications under Order 9 Rule 13 CPC, one by respondents No. 1 & 2 and the other one by respondents No. 6 to 8, for setting aside the ex-parte judgment & decree dated 25/04/2003 and the same came to be allowed on 16/11/2007. The judgment & decree dated 25/04/2003 was set aside. Two revision petition bearing No.93/2009 and 84/2009 came to be filed before this Court and the order dated 16/11/2007 passed by the trial court was set aside. 4. While the aforesaid proceedings were going on, another suit was filed by legal heirs of Bheru for cancellation of a will alleged to have been executed by Mahadev, the adoptive father of Bheru in favour of the defendants-petitioners and the plaintiffs-respondents as the petitioners are none-else but the legal representatives of Narain who is son of Mahadev’s brother Fatta. 5. The legal representatives of Bheru alleged the said will to be a forged will. In the said suit, it was alleged that Bheru had come in adoption to Mahadev and had also got name of Bheru entered in the revenue record and there was no mention of Mahadev having executed will during his lifetime. 6. With regard to the second suit filed by legal representatives of Bheru, the defendants-petitioners filed an application, after submitting written statement, under Order 14 Rule 5 CPC praying for an additional issue to be framed with regard to the question of adoption. 6. With regard to the second suit filed by legal representatives of Bheru, the defendants-petitioners filed an application, after submitting written statement, under Order 14 Rule 5 CPC praying for an additional issue to be framed with regard to the question of adoption. No cross-objections had been filed in the suit preferred by the legal representatives of Bheru. 7. This Court in SB Civil Writ Petition No.17979/2015 vide order dated 14/09/2017 held that as there was an assertion by the plaintiff regarding Bheru having been adopted by Mahadev and the same had been denied by the defendants-petitioners in the said case, therefore, it was necessary that an additional issue, as prayed for by the defendants-petitioners, to have been framed. The reason of the trial court that the application of framing of additional issue was not required as the said issue was a subject matter of the suit filed by the defendants-petitioners as against the plaintiffs-respondents, was held to be misdirected and it was observed that the two suits were independent proceedings to be addressed on evidence independently led. The observations made by the Court in the order dt. 14/09/2017 (supra) are quoted as under :- “I am of the considered view that the trial court has misdirected itself in refusing to frame the additional issue as sought by the defendants on the irrelevant ground that a challenge to the adoption deed dated 25.01.1962 by Dhaka Bai under which Bheru, her natural son was purportedly adopted by Mahadev, had also been laid in a separate suit. Each suit has to be decided on evidence laid therein. Commonality of issues in two separate suits is not prohibited in law. Question relating to Section 10 CPC which may arise in a given case have to be addressed with reference to the overall frame of the two suits. Prayer for consolidation of the two suits is also another aspect to be resolved by the contesting parties—and to be addressed by the court in its discretion at the appropriate time.” 8. Taking cue thereof, learned counsel for the defendants-petitioners submits that the application under Section 10 CPC was required to be allowed as both the suits i.e. first one preferred by the defendants-petitioners as well as the second suit preferred by the plaintiffs-respondents had common issue of adoption being valid or not. Taking cue thereof, learned counsel for the defendants-petitioners submits that the application under Section 10 CPC was required to be allowed as both the suits i.e. first one preferred by the defendants-petitioners as well as the second suit preferred by the plaintiffs-respondents had common issue of adoption being valid or not. It is his submission that the second suit filed by the plaintiffs-respondents relating to challenge to the will was dependent solely on the question whether the plaintiffs-respondents’ predecessor Bheru was adopted by Mahadev or not and whether once the earlier suit was pending, the subsequent suit ought to have been stayed on terms of Section 10 CPC. Learned counsel for the defendants-petitioners relied on the following judgments :- (i) AIR 1962 (SC) 527 , Manohar Lal Chopra Vs. Rai Bhadur Rao Raja Seth Hiralal (ii) (2003) 66 DRJ 111 , Rajdhani Flour Mills Ltd. Vs. Uttam Agro Foods (India) Pvt. Ltd. (iii) 1979 RLR 451, M/s Jagan Nath Jagdish Lal Vs. M/s Prara Mal Gobind Ram Sachdev (iv) 2000 WLC (Raj.) UC 530, Moti Lal & others Vs Jagdish Prasad & others (v) AIR 1972 Cal. 128 , Arun General Industries Ltd. Vs. Rishabh Manufacturers Private Ltd. & Ors. (vi) AIR 1978 (Delhi) 221, C.L. Tandon Vs. Prem Pal Singh Rawat & Ors. (vii) (1992) 3 SCC 1 , Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras 9. Per-contra, learned counsel for the plaintiffs-respondents submits that the issues which are required to be decided in the suit preferred by them are ten in number. The first issue is “whether the alleged will, sought to have been executed by late Mahadev in favour of the defendants-petitioners’ father was forged and artificial and was a nullity and ineffective in eyes of law ?” 10. The second question was "whether the defendants-petitioners on the basis of the sale deed dated 26/08/1969 were causing hindrance and interfering with the rights of the plaintiffs-respondents ?” Therefore, the plaintiffs-respondents were entitled to seek permanent injunction. 11. The other issues were related to the valuation of the suit, limitation and mis-joinder of the parties etc. The second question was "whether the defendants-petitioners on the basis of the sale deed dated 26/08/1969 were causing hindrance and interfering with the rights of the plaintiffs-respondents ?” Therefore, the plaintiffs-respondents were entitled to seek permanent injunction. 11. The other issues were related to the valuation of the suit, limitation and mis-joinder of the parties etc. However, he submits that the additional issue, which was framed at the askance of the defendants-petitioners and on the directions of this Court in the writ petition filed by the petitioners (supra), could not be used as a tool to get the entire proceedings in the suit filed by the plaintiffs-respondents to be stayed in terms of Section 10 CPC. 12. Learned counsel submits that the provisions of Section 10 CPC would not apply in the present case as the first suit of cancellation of adoption deed has already been decided and decreed. Although the plaintiffs-respondents moved application under Order 9 Rule 13 CPC which was allowed, the judgment and decree remained intact in view of the High Court staying the order setting aside the ex-parte decree. Thus, the revision preferred by the defendants-petitioners themselves stops them from raising issue under Section 10 CPC as the suit cannot be said to be pending between the parties. Learned counsel has relied on the following judgments:- (i) AIR 1992 Madras 363, R. Srinivasan Vs. Southern Petrochemical Industries Corporation Ltd. (ii) 1997 (2) WLC (Raj.) 130, Ramesh Chandra Vs. Smt. Kamla Devi (iii) 2011(4) WLC (Raj.) 549, Ranjitmal Choradia & 2 Ors. Vs. Shivram Singh & Ors. (iv) 2005(2) SC 256, National Institute of Mental Health Vs. C. Parameshwara (v) AIR 2013 (SC) 1712 , Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor. 13. I have given my thoughtful considerations to the rival submissions. 14. Sections 10 & 11 CPC, which is relevant for the purpose, are reproduced as under:- “10. Vs. Shivram Singh & Ors. (iv) 2005(2) SC 256, National Institute of Mental Health Vs. C. Parameshwara (v) AIR 2013 (SC) 1712 , Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor. 13. I have given my thoughtful considerations to the rival submissions. 14. Sections 10 & 11 CPC, which is relevant for the purpose, are reproduced as under:- “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. 11. Res judicata— No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I.—The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II.—For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.—Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI.—Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. [Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.—An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.]” 15. Section 115 CPC (as amended w.e.f. 01/07/2002) reads as under:- “115. Section 115 CPC (as amended w.e.f. 01/07/2002) reads as under:- “115. Revision [(1)] The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears— (a) to have exercised a jurisdiction not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit: Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.] (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.] (3) A revision shall not operate as a stay of suit or other proceeding before the, Court except where such suit or other proceeding is stayed by the High Court.] [Explanation.-In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue in the course of a suit or other proceeding.]” 16. The first and foremost question which needs to be addressed to is whether the suit filed by the defendants-petitioners challenging the adoption deed can be said to be pending. In this regard, learned counsel for the defendants-petitioners has taken this Court to the law laid down by the Apex Court in the case of Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (supra) wherein it was held as under :- “While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative from the date of the passing of the stay order and it does not mean that the said order has been wiped out from existence. This means that if an order passed by the Appellate Authority is quashed and the matter is remanded, the result would be that the appeal which had been disposed of by the said order of the Appellate Authority would be restored and it can be said to be pending before the Appellate Authority after the quashing of the order of the Appellate Authority. The same cannot be said with regard to an order staying the operation of the order of the Appellate Authority because in spite of the said order, the order of the Appellate Authority continues to exist in law so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant-company. The said appeal, therefore, fails and is liable to be dismissed” 17. Thus, from above, it is apparent that after the High Court has stayed operation of the order dated 16/11/2007, whereby the applications filed by the respondents under Order 9 Rule 13 CPC had been allowed, it can be said that the suit, which came to be decreed and the adoption deed dated 25/01/1962, was cancelled is stillborn. However, it cannot be said that the suit preferred by the defendants-petitioners is pending adjudication. The suit stands already decided as on today. Only fact is that the defendants-petitioners cannot get the decree executed in view of the subsequent proceedings under Order 9 Rule 13 CPC which have been stayed by this Court. 18. Thus viewed, the application preferred by the defendants-petitioners is wholly misconceived. Once this Court has reached to a conclusion that the first suit is not pending and the proceedings under Order 9 Rule 13 CPC which are under revision in this Court cannot be said to be continuation of the suit proceedings. The application moved for staying the subsequent suit with regard to the same facts or issues due to the pendency of the first suit is thus wholly unfounded and without any basis. 19. The second part, although having reached to the aforesaid conclusion, need not be gone into but as submissions have been addressed by both the sides, this Court deems it appropriate to deal with the submissions relating to Section 10 CPC. 20. In the case of Manohar Lal Chopra Vs. Rai Bhadur Rao Raja Seth Hiralal (supra), the Apex Court has held as under :- “39. The suit at Indore which had been instituted later, could be stayed in view of S. 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. The suit at Indore which had been instituted later, could be stayed in view of S. 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under S.151 is not justified. The provisions of S. 10 do not become inapplicable on a Court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract. It does not appear correct to say, as has been said in Ram Bahadur v. Devidayal Ltd. That the Legislature did not contemplate the provisions of S. 10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of S.35A indicate that the Legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for compensatory cost. The Legislature could have therefore provided for the non-application of the provisions of S.10 in those circumstances, but it did not. Further, S. 22 of the Code provides for the transfer of a suit to another Court when a suit which could be instituted in any one of two or more Courts is instituted in one of such Courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is clear, therefore, that the Legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in that other Court.” 21. In the case of Rajdhani Flour Mills Ltd. Vs. Uttam Agro Foods (India) Pvt. Ltd. (supra), the Delhi High Court has under as under:- “8. Law in this regard is well settled. In the case of Rajdhani Flour Mills Ltd. Vs. Uttam Agro Foods (India) Pvt. Ltd. (supra), the Delhi High Court has under as under:- “8. Law in this regard is well settled. Section 10 Cpc contemplates substantial identity of the matter in issue in the two suits. It is not the identity of the main issue or some of the issues, but the identity of the matter which is the determining test. The decision in one suit must non-suit the plaintiff in the other suit. Reference in this regard can be made to the decision of this court Arjies Aluminium Udyog Vs. Sudhir Batra, wherein it was held: 12. Section 10 of the Civil Procedure Code contemplates substantial identity of matter in issue in the two suits. It is not the identity of main issue or all issues but the identity of matter in issue which is the determining test. The decision in one suit must non-suit the other suit - this must be the phraseology of answer, to win the question whether the matter in issue in the two suits is directly and substantially the same. Thus, the matter for determination in application for stay u/s 10 CPC is not what is the basis of the claim in two suits. In Arun General Industries Ltd. Vs. Rishabh Manufacturers Private Ltd. and others, it was held as under : The matter for determination in the case of an application for stay u/s 10 of the Code is not what the basis of the claim in the two suit is, but what Is the matter is issue in the two suits.” 22. In the case of M/s Jagan Nath Jagdish Lal Vs. M/s Piara Mal Gobind Ram Sachdev (supra), Punjab & Haryana High Court has held as under :- “5. To judge as to whether the subject-matter in the two suits is substantially the same, the test universally accepted is that the decision in the prior suit should operate as resjudicata in the suit instituted later and shut out its trial. This test is fully satisfied in the present case because if the High Court at Delhi holds that the respondents are liable to render accounts and taking those accounts, nothing is found due from the petitioners that decision would operate as res judicata and would render the present suit incompetent. This test is fully satisfied in the present case because if the High Court at Delhi holds that the respondents are liable to render accounts and taking those accounts, nothing is found due from the petitioners that decision would operate as res judicata and would render the present suit incompetent. Apart from preventing the multiplicity of the proceedings, the other principal object of Section 10 of the Civil Procedure Code is the prevention of contradictory decrees by Courts of concurrent jurisdiction. This object would also be defeated if the present suit is not stayed.” 23. In the case of Moti Lal & others Vs Jagdish Prasad & others (supra), this Court has held as under :- “5. The policy of law under Section 10 of the Civil Procedure Code is to confine the Plaintiff to one litigation to avoid multiplicity of proceedings and conflicting verdict from the courts. If the revenue court and civil court both are permitted to proceed with the trial of the suit, there is a possibility of conflicting verdict inasmuch as there may be conflicting decisions on the question of right, title and interest of the plaintiff’s 1/15 share in Khasra nos. 618, 619 and 625. To avoid this possibility the court can exercise jurisdiction of staying the proceedings under Section 151 of the Civil Procedure Code even if Section 10 of the C.P.C. in terms do not apply.” 24. In the case of Ranjitmal Choradia & 2 Ors. Vs. Shivram Singh & Ors. (supra), this Court has held as under :- 11. For attracting the provisions of Section 10, the following conditions must be fulfilled:- (i) the suits must be between the same parties or their successors; (ii) the matter in issue in the later suit must be directly and substantially the same as in the previous suit; (iii) both the suits must be pending in a Court of law; (iv) the parties must be litigating under the same title in both the suits. 25. In the case of Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor (supra), the Apex Court, while discussing the law, has held as under :- “11. 25. In the case of Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor (supra), the Apex Court, while discussing the law, has held as under :- “11. 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. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences vrs. C. Parameshwara, (2005) 2 SCC 256 in which it has been held 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 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 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.” 12. 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, 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. 13. 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. 13. 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. As stated earlier, the eviction in the third suit has been sought on the ground of nonuser 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.” (underline is mine) 26. Having noted the aforesaid judgments, this Court finds that the view held by the Apex Court in the case of Manohar Lal Chopra Vs. Rai Bhadur Rao Raja Seth Hiralal (supra) and followed in the case of Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor (supra), requires the Court to examine whether the matter in issue is common. Having noted the aforesaid judgments, this Court finds that the view held by the Apex Court in the case of Manohar Lal Chopra Vs. Rai Bhadur Rao Raja Seth Hiralal (supra) and followed in the case of Aspi Jal and Anr. Vs. Khushroo Rustom Dadyburjor (supra), requires the Court to examine whether the matter in issue is common. As held above, Section 10 CPC provisions will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is the same. The distinction has to be drawn between the matter in issue and any of the questions in issue. It is to be noted that the language of Section 10 CPC is couched in a different form to that of Section 11 CPC. While Section 11 CPC provides that no Court shall try any suit or issue etc. which are in common and would act as res-judicata, Section 10 CPC only restricts the Court not to proceed with trial of any suit where the matter in issue are same between the parties in the previously instituted suit. In the present case, while the first suit, which although is not pending today (but may revive upon the application under Order 9 Rule 13 CPC in the even the even is finally allowed), the issues are relating to adoption. There is no whisper of will or allegation of forged will which is an issue to be decided and examined in the present suit filed by the plaintiffs-respondents. Thus, the matter in issue, directly and substantially in both the suits, is not the same nor the relief sought in both the suits by the parties are identical nor the disposal of one suit would mean disposal of the subsequent suit, the provisions of Section 10 CPC cannot be said to be applicable to them and the application filed by the defendants-petitioners was rightly rejected by the learned trial court vide order impugned. 27. For the reasons stated herein above, the present writ petition does not succeed and the order impugned passed by the learned trial court dated 16/09/2015 is upheld. 28. The writ petition is accordingly dismissed with cost of Rs.25,000/-.