1. The petitioners have challenged the order dated 23.07.2022 passed by the IIIrd Civil Judge Class-I, Raipur (C.G.) in Civil Suit No. 142-A/2016, parties being Munir Ahmed & Another Vs. Hemant Topkhanewale, whereby the application moved by the respondent/defendant under Section 10 read with Section 151 of the Code of Civil Procedure, 1908 (for short as the 'CPC') has been allowed consequently, the proceedings of the Civil Suit No. 142- A/2016 have been stayed.

2. The facts of the present case are that earlier one Civil Suit No. 53A/2011 was filed by Hemant Topkhanewale for specific performance of contract and injunction against Anil Topkhanewale with regard to settlement No. 102, Survey No. 472, 494 and part of survey No. 495, total admeasuring 4830 sq. ft. situated at Village Khamarhdih, Patwari Circle No. 110, Revenue Circle Raipur, District Raipur. Defendant Anil Topkhanewale filed a written statement and after a full dressed trial, the IVh Additional District Judge, Raipur dismissed the suit filed by Hemant Topkhanewale vide judgment and decree on 20.06.2012. The plaintiff of that suit namely Hemant Topkhanewale preferred First Appeal No. 139/2012 against judgment and decree dated 20.6.2012 before this Court which is pending consideration.

3. On 22.06.2016, the petitioners filed Civil Suit No. 142A/2016 before the Court of XIIIth Civil Judge, Class-II, Raipur for eviction and vacant possession of the suit property bearing changed survey No. 3/472/11, 494/11, 495/11/5 admeasuring 4830 sq.ft. on the basis of a registered saledeed executed by Anil Topkhanewale in favour of the plaintiffs on 19.02.2016 situated at Village Khamhardih, Patwari Circle No. 110, Ward No. 29, Netaji Subhashchandra Bose Ward, Tehsil Raipur, District Raipur (C.G.).

4. During the pendency of Civil Suit No. 142-A/2016, the defendant/respondent moved an application under Section 10 read with Section 151 of C.P.C. for staying the further proceedings of the civil suit on the ground that the earlier civil suit filed by the defendant/respondent against Anil Topkhanewale was dismissed by the learned trial Court against which a First Appeal is pending before the High Court of Chhattisgarh at Bilaspur. It is further stated that during the pendency of the above-referred suit, the suit property was sold to the plaintiffs/petitioners and the issues are identical and substantially similar to the previous suit and the judgment and decree passed in the pending First Appeal would be binding on subsequent suit therefore the proceedings of Civil Suit No. 142-A/2016 may be stayed till final disposal of the First Appeal pending before the High Court. The application was replied to by the petitioners where they denied the averments made in the application and specifically stated that the nature of both the suits is different, the subject matter is also different and in both the suits different issues were framed. It is further stated that the parties are also not similar and relief(s) sought in both the suits are different. The petitioners further stated that the application has been moved after six years to delay the final disposal of the civil suit.

5. Vide order dated 23.07.2022, the learned trial Court held that First Appeal No. 139/2012 is pending before the High Court of Chhattisgarh at Bilaspur against the judgment and decree passed in Civil Suit No. 53A/2011 and the suit property is similar in both the suits. It is also held that the parties are the same and to avoid a multiplicity of cases, further proceedings of the civil suit can be stayed, consequently, an order has been passed to stay further proceedings of Civil Suit No. 142A/2016.

6. Learned counsel for the petitioners would submit that the issues involved in both cases are entirely different and the suit preferred by the respondent was in respect of the specific performance of a contract, whereas the present suit has been filed by the petitioners for eviction, vacant possession and mandatory injunction, therefore, the provisions of Section 10 of CPC would not attract. It is further stated that in both the suits subject matter and issues are directly and substantially not the same, even relief(s) claimed in both the suits are altogether different. Learned counsel for the petitioners has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor, reported in (2013) 4 SCC 333; judgment rendered by the High Court Madhya Pradesh in the matter of Prakash Chand Soni Vs. Anita Jain reported in 2002 (2) MPLJ 121 and the judgment rendered by High Court of Andhra Pradesh in the matter of Karri Satyanarayana Vs. Pichika Veerraju reported in 1996 (1) ALT 177 and would submit that where the first suit is by the person in possession of a property for the specific performance of an oral agreement to sell the property and the second suit is by the owner of the property for ejectment and for damages, the subject matter in the two suits are not the same, in such a situation Section 10 of CPC would not attract.

7. On the other hand, learned counsel for the respondent would submit that the doctrine of res sub-judice would apply in the present case as the object behind above stated principle is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and same relief. This section intends to protect a person from the multiplicity of proceedings and to avoid conflicting decisions. He would submit that the learned trial Court has passed a well-reasoned order which does not require interference by this Court. He has placed reliance upon the judgment rendered by the High Court of Madhya Pradesh in the matter of Dadolwa Samaylal Vs. Ramakant Ralakhan Brahmin reported in 2013 (4) MPLJ 614; judgments rendered by the Bombay High Court in the matter of Dinshaw Vs. Galstaun reported in 29 Bom LR 382 and Jai Hind Iron Mart Vs. Tulsiram Bhagwandas reported in 1952 (54) BLR 844; judgment passed by the Nagpur Bench of Bombay High Court in the matter of The Laxmi Bank Ltd., Akola & Ors. Vs. Harikishan & Ors., AIR 1948 Nag 297; judgment rendered by the High Court of Madhya Pradesh in the matter of A.C. Naharoy Vs. National Coal Development Corporation Ltd. Ranchi & Ors. reported in 1972 SCC Online MP 30 and judgment passed by Calcutta High Court in the matter of Jugometal TRG Republica Vs. Rungta & Sons reported in AIR 1966 CAL 382 and would submit that the learned trial Court has every power under Section 151 of CPC to pass such an order when the issues involved in the subsequent suit are covered by one of the issues previously instituted, so the proceedings of the subsequent suit should be stayed and when the parties are almost similar and the decision of one suit will affect the decision in the subsequent suit, the power given under Section 10 of CPC should be exercised. They would submit that the petition preferred by the petitioners deserves to be dismissed.

8. I have heard the learned counsel for the parties and perused the documents annexed with instant petition.

9. From a perusal of the documents annexed with this petition, it is quite vivid that earlier a civil suit was filed by Hemant Topkhanewale against Anil Topkhanewale for specific performance of contract pertaining to the suit land as discussed in para No. (6) where the learned trial Court i.e. IVth Additional District Judge, District Raipur (C.G.) framed the following issues:-

(i) Issue No. (1) - Whether the defendant executed an agreement to sell on 12/05/1996 for the sale of the suit property in favour of the plaintiff at the rate of Rs.25/- per sq. ft. and received an advance amount of Rs.1,21,000/-

This issue was decided as not proved.

(ii) Issue No. (2) - Whether the agreement to sell dated 12/05/1996 was plundered by the plaintiff and it was torn out and the defendant was threatened to vacate the suit land

This issue was decided as not proved.

(iii) Issue No. (3) - Whether the plaintiff has made payment of the entire consideration amount and on account of this reason, he is entitled to get a registered sale deed in his favour

This issue was decided as not proved.

(iv) Issue No. (4) - Whether the defendant had permitted the plaintiff to run his business free of cost being a real brother

This issue was decided as proved.

(v) Issue No. (6) - Whether the plaintiff has raised construction spending Rs. 4 lacs over the suit land

This issue was decided as not proved.

The learned trial Court after appreciation of the entire evidence dismissed the suit filed by the plaintiff of that suit for specific performance of contract, against which the First Appeal No. 139 of 2012 was preferred before this Court which is still pending.

10. From the facts of Civil Suit No. 142-A/2016, it emerges that Anil Topkhanewale who is the registered owner of the suit property, sold it to the petitioners through a registered sale deed dated 19.02.2016. Possession of the property was not handed over to the petitioners and the suit property was in the possession of respondent Hemant Topkhanewale, therefore the petitioners filed a suit for eviction, possession and for mandatory injunction against Hemant Topkhanewale. The respondent moved an application under Section 10 of CPC only on the ground that an earlier suit filed by him for the specific performance of the contract was dismissed by the learned trial Court and the First Appeal is pending before the High Court of Chhattisgarh at Bilaspur. The application was replied to and the learned trial Court passed the order taking into consideration the fact that First Appeal filed by the respondent is pending before the Hight Court of Chhattisgarh.

11. Section 10 of CPC says 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.”

12.Section 10 of CPC says that no Court will proceed with the trial of any suit if the issues are directly and substantially related to the previously instituted suit between the same parties or parties litigating on their behalf under the same title and the matter is pending before the court having the competent jurisdiction. The purpose of the doctrine of Res Sub Judice is to prevent the multiplicity of the proceedings and to refrain from two conflicting decisions. The doctrine bars the parallel trial of the suit where the subject matter of both suits is similar.

13.The essentials of Section 10 of CPC are as follows:-

1. Same Parties – For invoking Section 10, parties in two suits need not be the same. To apply Section 10, it is enough that previously instituted suit is between parties under whom they or any of them claim litigating under the same title.

2. Matter in the issue must be same – For application of Section 10, it is enough to establish that substance of the matter in controversy in two suits are same.

3. The suit must be pending – Section 10 gives the power to put a stay on proceedings only if the previous suit is pending. It is the duty and responsibility of the defendant to make the court aware of the pending former suit.

14.The judgments cited by the learned counsel for the petitioners are as follows:-

•  Aspi Jal and Another Vs. Khushroo Rustom Dadyburjor, reported in (2013) 4 SCC 333;
•  The judgment rendered by the High Court Madhya Pradesh in the matter of Prakash Chand Soni Vs. Anita Jain reported in 2002 (2) MPLJ 121 and
•  The judgment rendered by High Court of Andhra Pradesh in the matter of Karri Satyanarayana Vs. Pichika Veerraju reported in 1996 (1) ALT 177

15.The judgments cited by the learned counsel for the respondent are as follows:

•  The judgment rendered by the High Court of Madhya Pradesh in the matter of Dadolwa Samaylal Vs. Ramakant Ralakhan Brahmin reported in 2013 (4) MPLJ 614;
•  The judgments rendered by the Bombay High Court in the matter of Dinshaw Vs. Galstaun reported in 29 Bom LR 382 and Jai Hind Iron Mart Vs. Tulsiram Bhagwandas reported in 1952 (54) BLR 844;
•  The judgment passed by the Nagpur Bench of Bombay High Court in the matter of The Laxmi Bank Ltd., Akola & Ors. Vs. Harikishan & Ors., AIR 1948 Nag 297;
•  The judgment rendered by the High Court of Madhya Pradesh in the matter of A.C. Naharoy Vs. National Coal Development Corporation Ltd. Ranchi & Ors. reported in 1972 SCC Online MP 30 and judgment passed by Calcutta High Court in the matter of Jugometal TRG Republica Vs. Rungta & Sons reported in AIR 1966 CAL 382.

16.The Hon'ble the Supreme Court in the matter of Aspi Jal (supra) has held that the test for applicability of Section 10 of CPC is whether a final decision being reached in the previously instituted suit; such decision would operate as res judicata in the subsequent suit. In the matter of Prakash Chand Soni (supra), it is held by the High Court of Madhya Pradesh that the matter directly and substantially in issue in the eviction suit is not the same in the suit for the specific performance of a contract. The issue relating to the agreement of sale and its enforceability against the vendor and subsequent transferee is not “necessary” in the eviction suit. The suit can be decided without determining this question and the eviction suit cannot be stayed until the decision of the suit for the specific performance of the contract. It is further observed that if the plaintiff in his suit for specific performance ultimately succeeds he can get back possession of the house on the strength of his title.

17. With regard to judgments cited by the learned counsel for the respondent, in the matters of Dadolwa Samayalal (supra) and Jai Hind Iron Mart (supra), it is held that one of the tests, in order to attract provisions of Section 10 CPC, is as to whether the decision of the former suit would operate as res judicata in the present suit. In this regard it would be worthy to mention here that the earlier suit was filed for specific performance of the contract and issues which have been discussed in para – 9 of this order are entirely different from the issues involved in the present case, therefore, it cannot be held that the decision of the former suit would operate as res judicata in the present suit. In the matter of Dinshaw (supra), it is held that two courts with parallel jurisdiction proceeding simultaneously with two suits when there is a possibility of two courts coming to different conclusions and resulting in a conflict of decision, in such a situation Section 10 of CPC would attract. But in the present case, the subject matters of both the suits are different, even parties are different and the outcome of both the judgments would be different, therefore, the law rendered in this case is distinguishable from the facts of the present case. In the matter of The Laxmi Bank Ltd., Akola (supra), it is held that there should be a complete identity of parties or a complete identity of the subject matter to apply Section 10 of CPC

18. In the present case, the parties are different, the relief sought in both the civil suits is different and even issues are altogether different therefore the judgment relied on by counsel for the respondent is of no help, and is distinguishable from the facts of the present case.

19. From the above-stated facts and decisions of the Hon'ble Supreme Court and various High Courts, it can be culled out that :-

I. The rule of subjudice is not applied when issues in both suits are distinct and different.

II. Section 10 of CPC would not attract when there are common issues in two suits.

III. Section 10 of CPC would not apply even when parties are the same and there are different issues between them.

20. From the above discussion(s), it is quite vivid that both the suits are filed seeking different relief(s); the parties are distinct and different, the issues involved in both the suits are different and the issues are directly and substantially not the same, therefore, in the opinion of this Court, Section 10 of CPC would not apply and when Section 10 of CPC would not apply, the Court cannot exercise power given under Section 151 of CPC to grant such relief(s), consequently, the order passed by learned IIIrd Civil Judge Class-I, Raipur dated 23.07.2022 in Civil Suit No. 142-A/2016 is hereby set aside.

21. In the result, the petition is allowed.