JUDGMENT : Jyotsna Rewal Dua, J. Asserting that subsequent suit between the parties pertains to a matter directly and substantially in issue in a previously instituted suit between the same parties, petitioners are praying for staying of the subsequently filed suit by invoking Section 10 of the Code of Civil Procedure. Their application having been dismissed by the learned Trial Court vide impugned order dated 18.12.2018, (Annexure P-9), petitioners have preferred instant petition. 2. Relevant facts may be noticed hereinafter: 2(i) Civil Suit No.34-1 of 2015 was filed on 17.1.2015, by ten persons including present petitioners, who figured as plaintiffs No.6 & 7 in the suit. This civil suit was instituted against nine persons including present respondents, who figured as defendants No. 1 to 5 in the civil suit. Defendants No. 8 & 9 were proforma defendants. The civil suit was filed inter-alia challenging the existing revenue entries in favour of the defendants in respect of suit land, which included Khasra No.270 and 481 situated at Mohal Jhakhari Nichli, up-tehsil Dhammi, District Shimla measuring 00-19-41 hectares. The prayer in the civil suit is for decree for declaration to the effect that plaintiffs are joint owners of different parcels of land including Khasra Nos.270 and 481 (supra) and that revenue entries reflecting contrary position in respect of suit land are illegal, wrong, void and required to be declared so. Further, decree for declaration has been sought to the effect that sale deeds executed by some of the defendants in respect of some parts of the suit land, on the basis of such revenue entries in favour of defendant No.6, are also void. Consequential decree for permanent prohibitory injunction in respect of suit land inclusive of Khasra No.270-481 has also been prayed for. 2(ii) Subsequent to filing of above referred suit, another civil suit bearing No.273-1 of 2015 was filed on 19.11.2015 by present respondents (defendants No.1 to 5 in civil suit No.34-1 of 2015) against the present petitioners (plaintiffs No.6 & 7 of civil suit No.34/1 of 2015). This suit is for possession of land comprised in Khasra Nos.270 and 481 measuring 0-19-41 hectares situated at Mohal Jhakhari Nichli, up-tehsil Dhammi, District Shimla, and for consequential relief of permanent prohibitory injunction. This suit is for possession of land comprised in Khasra Nos.270 and 481 measuring 0-19-41 hectares situated at Mohal Jhakhari Nichli, up-tehsil Dhammi, District Shimla, and for consequential relief of permanent prohibitory injunction. 2(iii) Written statement to Civil Suit No.34-1 of 2015 was filed by defendants No.1 to 7 therein, wherein one of the objections raised was that defendant No.6 had also filed an independent civil suit (Civil Suit No.135-1 of 2014), involving substantially the same issue, therefore, the civil suit was sought to be stayed. 2(iv) In Civil Suit No.273-1 of 2015, written statement was filed by the present petitioners, wherein, preliminary submission was made that in view of pendency of an earlier Civil Suit No.34-1 of 2015, involving the same parties, same subject matter, the subsequent civil suit No.273-1 of 2015 is required to be stayed. 2(v) In view of the written statements filed by petitioners and respondents to each other's civil suit, seeking stay of other's suits, one of the issues framed in both the civil suits was whether the suit was liable to be stayed in view of Section 10 of Code of Civil Procedure. 2(vi) The first suit i.e. Civil Suit No.34-1 of 2015, was at the stage of recording of evidence when plaint was allowed to be amended. Now, it is stated to be at the stage of filing replication. Civil suit No.273-1 of 2015 is stated to be at the stage of recording of evidence. Evidence has not been led so far in either of the suit. 2(vii) Present petitioners in the subsequently instituted Civil Suit No.273-1/2015, moved an application on 25.11.2016 under Section 10 of Code of Civil Procedure for the staying the proceedings of the suit. The application was opposed by the respondents herein by filing reply thereto. Vide impugned order dated 18.12.2018, the application has been dismissed by the learned Trial Court on the grounds that:- parties in both the civil suits are not the same; suit land is also not the same in both the civil suits; all issues have already been framed in both the civil suits, therefore it is not possible to give finding only on one issue in respect of applicability of Section 10 of Code of Civil Procedure, viz-a-viz stay of suit. Accordingly, the application has been dismissed. Feeling aggrieved, present petition has been preferred. 3. I have heard Mr. Accordingly, the application has been dismissed. Feeling aggrieved, present petition has been preferred. 3. I have heard Mr. Y.P. Sood, learned counsel for the appellant and Mr. G.C. Gupta, learned Senior counsel, for the respondents and gone through the appended record. 4. (I) Following points need determination for adjudication of the present petition: (a) Whether the matter in issue in both the civil suits is directly and substantially the same. (b) Whether decision of first suit operate as res judicata qua the subsequent suit. (c) Whether the framing of issue in respect of applicability of Section 10 of the Code of Civil procedure alongwith all other issues of fact and law would lead to only one conclusion that all the issues have to be tried together and findings on all the issues have to be given in one go including the finding on applicability of Section 10 of the Code of Civil Procedure to the subsequent suit. 4(ii) Parties and subject matter in both the civil suits: 4(ii)a) It is indisputable that the present petitioners and present respondents are parties in both the civil suits. First suit (Civil Suit No.34-1 of 2015), has been filed by ten plaintiffs, and present petitioners are reflected therein as plaintiffs No.6 & 7. This suit (Civil Suit No.34-1 of 2015) has been filed against seven contesting defendants and present respondents figure therein as defendants No.1 to 5. 4(ii)b) In the subsequent suit (Civil Suit No.273-1 of 2015), present respondents are the plaintiffs and suit has been filed against the two defendants, who were plaintiffs No.6 & 7 in the first civil suit (present petitioners). 4(iii) In the first civil suit (Suit No.34-1 of 2015), challenge inter alia is to the existing revenue entries in favour of the defendants, which include the present respondents. Challenge in respect of revenue entries is in respect of various parcels of land including Khasra No.270 & 481, which is the subject matter of the second suit (Civil Suit No.273-1 of 2015). The second civil suit has been filed by present respondents for getting the possession of Khasra No.270 & 481, from the petitioners on the strength of existing revenue entries, whereas the first civil suit has been filed by the petitioners alongwith others challenging these very revenue entries, i.e. revenue entries of Khasra Nos. The second civil suit has been filed by present respondents for getting the possession of Khasra No.270 & 481, from the petitioners on the strength of existing revenue entries, whereas the first civil suit has been filed by the petitioners alongwith others challenging these very revenue entries, i.e. revenue entries of Khasra Nos. 270 & 481 amongst revenue entries of various other parcels of land in favour of present respondents. Hon'ble Apex Court in, titled Aspi Jal And Another Vs. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 relevant portion held as under:- "11... ... ... ... .. 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 the 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." It is apt to refer to, titled National Institute of Mental Health & Neuro Sciences, (2005) 2 SCC 256 relevant portion held as under:- "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 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 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 subject matter in both the proceedings is identical." Applying the above principle to the facts of instant case, it is to be seen whether decision in the first civil suit will operate as res judicata and will have binding effect on the second civil suit or not. In the case in hand, in case the petitioners succeed in their challenge to the revenue entries in the first civil suit in respect to Khasra No.270 & 481 then obviously the second suit filed by respondents for possession on the strength of their title on the basis of existing revenue entries will fail. Conversely, in case, petitioners fail in their challenge to the revenue entries in respect of Khasra No.270 & 481 then the respondents can proceed with their civil suit for possession in respect to Khasra No.270 & 481, on the basis of existing revenue entries. It therefore cannot be said that insofar as Khasra No.270 and 481 are concerned, subject matter involved in the two civil suits is not directly and substantially the same. Present petitioners and respondents are parties in both the civil suits and fighting over two khasra Nos. 270 and 481 in both the suits. In Civil Suit No.34-1 of 2015, petitioners alongwith others have challenged the existing revenue entries and are seeking to protect their possession qua various Khasra numbers including Khasra No.270 and 481, whereas the subsequent suit (Civil Suit No.273-1 of 2015) has been filed by the respondents on the strength of these very revenue entries to get possession of Khasra No.270 and 481 from the present petitioners. Therefore in respect of Khasra No.270 and 481, the parties as well as the matter in controversy in both the civil suits is directly and substantially the same. 4(iv) Section 10 of Code of Civil Procedure viz-a-viz framing of issues and findings thereupon: 4(iv)a) Learned senior counsel, for the respondents submitted that issues of fact and law including the issue 'as to whether the suit is liable to be stayed in view of Section 10 of Code of Civil Procedure' was framed by the learned trial Court. After framing all the issues under Order 14 Rules 1 & 2 of Code of Civil Procedure, the application under Section 10 was not maintainable. Relying upon a Full Bench decision of this Court in, titled Prithvi Raj Jhingta Vs. Gopal Singh, (2006) 2 ShimLC 441 it was contended that once all issues of fact and law have been framed then it is not open for the learned Trial Court to give finding only on one issue. The relevant para from Pritvi Raj Jhingta's case may be noticed hereinafter;- "9 Based upon the aforesaid reasons therefore, and in the light of legislative background of Rule 2 and the legislative intent as well as mandate based upon such background, as well as on its pain reading, we have no doubt in our minds that except in situations perceived or warranted under Sub-rule (2) where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under Sub-rule (1), clearly and explicitly in situations where the Court has framed all issues together, both of law as well as facts and has also tried all these issues together, it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision. This course of action is not available to a Court because Sub-rule (1) does not permit the Court to adopt any such principle of severability and to dispose of a suit only on preliminary issues, or what can be termed as issues of law, Sub-Rule (1) clearly mandates that in a situation contemplated under it, where all the issues have been framed together and have also been taken up for adjudication during the course of the trial, these must be decided together and the judgment in the suit as a whole must be pronounced by the Court covering all the issues framed in the suit." 4(v) In Prithvi Raj Jhingta's case, it was held that except in situations perceived or warranted under sub Rule (2) of order 14 where a Court in fact frames only issues of law in the first instance and postpones settlement of other issues, under Sub-rule (1), clearly and explicitly in situations where the Court has framed all issues together, both of law as well as facts and has also tried all these issues together, then it is not open to the Court in such a situation to adopt the principle of severability and proceed to decide issues of law first, without taking up simultaneously other issues for decision'. 4(vi) In the instant case only issues were framed. Evidence has not been led. Therefore, it cannot be said that all issues have been tried. The issue of triability of all the issues becomes important while considering applicability of Section 10 of Code of Civil Procedure. 4(vii) Since a very peculiar fact position of applicability of Section 10 of Code of Civil Procedure is involved in the matter regarding which an issue was framed alongwith other issues of fact and law therefore matter has to be examined viz-a-viz, Section 10 of the Code of Civil Procedure, which reads as under: "10. 4(vii) Since a very peculiar fact position of applicability of Section 10 of Code of Civil Procedure is involved in the matter regarding which an issue was framed alongwith other issues of fact and law therefore matter has to be examined viz-a-viz, Section 10 of the Code of Civil Procedure, which reads as under: "10. 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." Section 10 begins with the words 'No Court shall proceed with the trial'. Section 10 bars the trial of a civil suit in which, matter in issue is also directly and substantially in issue in a previously instituted civil suit. In case, trial is allowed on all the issues including the issue of stay of proceedings in view of Section 10 of Code of Civil Procedure, in that scenario Section 10 of Code of Civil Procedure will become redundant and meaningless. Section 10 of the Code of Civil Procedure is a substantive provision and determining its applicability to a subsequently instituted suit cannot be held hostage to full-fledged trial on all issues including the issue of applicability of Section 10 of CPC, merely on the ground that issue of stay of suit, in view of Section 10 of CPC has not been formally treated as a preliminary issue, in a case where issues have not been tried and evidence has not been led. Section 10 of Code of Civil Procedure bars 'Trial' of a subsequent suit when prescribed conditions therein are satisfied. It is apt to refer to some law on meaning of word 'Trial':- 4(viii)a) Hon'ble Apex Court in titled Vidyabai and others Vs. Padmalatha and another, (2009) 2 SCC 409 relevant segment held as under:- "11. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. It is apt to refer to some law on meaning of word 'Trial':- 4(viii)a) Hon'ble Apex Court in titled Vidyabai and others Vs. Padmalatha and another, (2009) 2 SCC 409 relevant segment held as under:- "11. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to 'commencement of proceeding." 4(viii)b) Hon'ble Apex Court in titled Baldev Singh and others Vs. Manohar Singh and another, (2006) 6 SCC 498 relevant portion held as under:- "17. Before we part with this order, we may also notice that proviso to Order 6 Rule 17 of the CPC provides that amendment of pleadings shall not be allowed when the trial of the Suit has already commenced. For this reason, we have examined the records and find that, in fact, the trial has not yet commenced. It appears from the records that the parties have yet to file their documentary evidence in the Suit. From the record, it also appears that the Suit was not on the verge of conclusion as found by the High Court and the Trial Court. That apart, commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure must be understood in the limited sense as meaning the final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. As noted herein after, parties are yet to file their documents, we do not find any reason to reject the application for amendment of the written statement in view of proviso to Order 6 Rule 17 of the CPC which confers wide power and unfettered discretion to the Court to allow an amendment of the written statement at any stage of the proceedings." 4(viii)c) Hon'ble Apex Court in titled Kailash Vs. Nanhku and others, (2005) 4 SCC 480 relevant segment held as under:- "13. Nanhku and others, (2005) 4 SCC 480 relevant segment held as under:- "13. At this point the question arises : When does the trial of an election petition commence or what is the meaning to be assigned to the word 'trial' in the context of an election petition? In a civil suit, the trial begins when issues are framed and the case is set down for recording of evidence. All the proceedings before that stage are treated as proceedings preliminary to trial or for making the case ready for trial. As held by this Court in several decided cases, this general rule is not applicable to the trial of election petitions as in the case of election petitions, all the proceedings commencing with the presentation of the election petition and upto the date of decision therein are included within the meaning of the word 'trial'. 14. In Harish Chandra Bajpai v. Triloki Singh, (1957) SCR 370, the narrow and wider sense in which the word 'trial' is used came up for consideration of the Court. In its narrow or limited sense, 'trial' means the final hearing of the petition consisting of examination of witnesses, filing documents and addressing arguments. In its wider sense, the word 'trial' indicates the entire proceeding from the time when the petition comes before the court until the pronouncement of decision. In the context of an election petition, it was held that the word 'trial' must necessarily include the matters preliminary to the hearing, such as settlement of issues, issuance of directions and the like. With the receipt of the petition in the High Court, various steps have to be taken before the stage can be set for hearing it. The respondent has to file his written statement and issues have to be settled. The stages of discovery and inspection, enforcing attendance of witnesses and compelling the production of documents do not form part of the hearing in a trial governed by the CPC but precede it. For the purpose of an election petition, the word 'trial' includes the entire proceedings commencing from the time of receipt of the petition until the pronouncement of the judgment. It was held that hearing of an application under Order VI Rule 17 of the CPC for amending the pleadings would be a stage in the trial of an election petition." 4(viii)d) In titled Sujanbai Haribhau Kakde and others Vs. It was held that hearing of an application under Order VI Rule 17 of the CPC for amending the pleadings would be a stage in the trial of an election petition." 4(viii)d) In titled Sujanbai Haribhau Kakde and others Vs. Motiram Gopal Saraf and another, (1980) AIR Bombay 188 held as under:- "10. There cannot be any dispute that the provision's of Section 10 of the Code are mandatory. In Manoharlal's case (cited supra) the Supreme Court has categorically observed that provision of Section 10 of the Code is clear and mandatory. There is, therefore, no difficulty in holding that the trial Court has to stay the trial of the suit which is governed by the provisions of that section. However, it may be noted that what is prohibited is proceeding with the trial of the suit. The word "trial" has not been denned in the Code and that word occurring in Section 10 will have to be construed in the light of scheme of the Code itself. As has been observed by the Supreme Court in Harish Chandra's case the word "trial" standing by itself is susceptible of both the narrow and wider senses i.e. it may be understood in the limited sense as meaning the final hearing of the matter consisting of examination of witnesses, filing documents and addressing arguments or it may connote entire proceedings before the tribunal from the time that the matter is instituted until the pronouncement of the decision. The case before the Supreme Court was under the Representation of the People Act of 1951 and, there the Court was called upon to construe the word "trial" occurring in Section 90 of that Act. Considering the scheme of the Act the Supreme Court held that the word there was used in a wider sense. It would, therefore, appear that the word "trial" cannot have only one meaning as urged by Mr. Kherdekar, namely all proceedings right from the institution of the plaint till disposal of the suit. As has been observed by the Supreme Court, it is also capable of narrower meaning namely the final hearing of the suit consisting of examination of witnesses, filing documents and addressing arguments. Kherdekar, namely all proceedings right from the institution of the plaint till disposal of the suit. As has been observed by the Supreme Court, it is also capable of narrower meaning namely the final hearing of the suit consisting of examination of witnesses, filing documents and addressing arguments. In my view, it is in this narrow sense that the word "trial" has been used in Section 10 of the Code." 4(viii)e) Hon'ble High Court of Calcutta in CO No.2868 of 2017, titled Sree Sree Iswar Radha Behari Jew and Sree Sree Iswar Salgram Jew represented by Basudeb Das Vs. Malati P. Soni, wherein it was held as under:- "33. There is distinction between when the trial stage commences in the life of a civil suit and when the trial actually commences within the meaning of the two relevant expressions used in the proviso to Order VI Rule 17 of the Code. Ordinarily, the trial stage commences in a suit immediately upon issues being determined. However, it is not immediately thereupon that the trial in a suit commences in right earnest and the commencement of the trial is only when any witness takes to the box, whether to prove his affidavit of evidence or to prove any document to be tendered into evidence or to face any cross-examination; for, it is at this stage that the court applies its judicial mind to examine the evidence or to consider whether a particular document is to be received in evidence or to consider the permissibility of the questions put in cross-examination. It is also open to the Court to put its own questions to the witness; and, when the Court, does so, it surely applies its mind for the purpose of assessing the merits of the lis." In the instant case, preliminary submission in respect to stay of subsequently instituted suit had been made in the written statement. Issue in this regard was also framed. Before the trial began, defendants (present petitioners) moved a separate application invoking Section 10 of Code of Civil Procedure for staying the subsequent suit. Section 10 is a definite and mandatory provision by virtue of which the Court is prohibited from proceeding with the 'Trial' of a subsequently instituted suit, when matter involved is also directly and substantially in issue in previously instituted suit. Section 10 is a definite and mandatory provision by virtue of which the Court is prohibited from proceeding with the 'Trial' of a subsequently instituted suit, when matter involved is also directly and substantially in issue in previously instituted suit. By invoking Section 10 of Code of Civil Procedure, subsequent suit does not get disposed of on any preliminary issue, only its trial is stayed. Therefore, issue of applicability of Section 10 of Code of Civil Procedure stands on a different footing altogether. Learned trial Court has not considered above aspects in the impugned order. In the facts and circumstances of the case, learned trial Court fell in error in rejecting the application moved by the petitioners under Section 10 of the Code of Civil Procedure. 5. Notwithstanding above observations and discussions, learned Senior Counsel for the respondents has referred to a judgment passed by Coordinate Bench of this Court in OMP No.160 of 2014 in civil suit No.17 of 2014, dated 21.10.2018, where in somewhat similar circumstances, both the cases were ordered to be consolidated and joint trial was ordered. Admittedly both the Civil Suits in question i.e. No.34/1 and 273/1 were instituted in 2015 and since then four years have gone by. Consolidation of both the suits will avoid multiplicity of proceedings as well as will lead to expeditious disposal. (See titled Prem Lala Nahata and another vs. Chandi Prasad Sikaria, (2007) 2 SCC 551 ). Learned counsel for the petitioners does not have any objection to the consolidation & joint trial of both the civil suits i.e. Civil Suit Nos.34/1 of 2015 and 273/1 of 2015. In view of above position the present petition is allowed, the impugned order dated 18.12.2018, is quashed and set aside. However, in view of facts and circumstances of the case and in the interest of justice, it is ordered that both the civil suits Nos.34/1 of 2015 and 273/1 of 2015, shall be tried by Civil Judge (Sr. Division) Court No.3, Shimla, H.P. The Civil Suit No 273/1 of 2015, pending before Civil Judge (Sr. Division) Court No.2, Shimla, is ordered to be transferred to Civil Judge (Sr. Division) Court No.3. It is also directed that an endeavour be made to complete the trial expeditiously & preferably within a period of six months and in no case later than 31st June, 2020. Division) Court No.2, Shimla, is ordered to be transferred to Civil Judge (Sr. Division) Court No.3. It is also directed that an endeavour be made to complete the trial expeditiously & preferably within a period of six months and in no case later than 31st June, 2020. Parties through their respective counsel are directed to remain present before the learned Civil Judge (Sr. Division) Court No.3 on 27th September, 2019. Pending applications, if any, shall also stand disposed of.