HIGH COURT OF JAMMU AND KASHMIR
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(1.) ORDER :- Civil suit entitled Suleman and others versus Lal Din and others is pending disposal in the Court of Sub-Judge, Poonch. During the course of proceedings before that Court, Lal Din and Feroze Din defendants moved an application under S.10, C.P.C. for stay of the present suit as according to them, the plaintiffs had earlier instituted a suit in which the matter in issue was also directly and substantially the same as alleged in the present suit. Learned Sub-Judge after obtaining objections from the other side, and hearing both the parties, rejected the application on the grounds that parties were not the same in both the suits. Aggrieved by this order, Lal Din, petitioner-defendant has come up in revision before this Court.
(2.) I have heard learned counsel for the parties. Admittedly, same of the defendants in the previously instituted suit are not parties in the present case and in the same way, names of some of the defendants in the present case, do not figure in the previously instituted suit. The provisions of S.10, C.P.C. are clear, definite and mandatory. A Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. There are three essential conditions which are necessary to be fulfilled for bringing in operation of S.10, C.P.C. These conditions are :
1. That matter in issue in the second suit is directly and substantially in issue in the previously instituted suit.
2. That the parties in the two suits are the same.
(3.) That the Court in which the first suit is instituted, is a Court of competent jurisdiction to grant relief claimed in the subsequently instituted suit. The point for consideration in this case is as to whether condition No. 2 as enumerated above, has been fulfilled ? "Same parties" within the meaning of S.10, C.P.C. contemplates same effective parties who seek reliefs or against whom reliefs are sought. If some persons are added as nominal or pro forma parties in the subsequent suit, that fact will not detract from the fact that the parties are essentially the same in both the suits. It also means the parties as between whom the matter substantially in issue has arisen and has to be decided. Complete identity of either the subject matter or the parties is not required. In AIR 1972 Cal 128, it has been held that it is enough if there is a substantial identity of the parties and the existence of an additional party in the suit subsequently filed does not by itself make S.10 inapplicable. In an authority of this Court reported as 1964 Kash LJ 82, it has been held that it is not necessary that the parties should be the same and if there are parties common to the litigation between whom substantially the matter in subsequent suit, as the matter in dispute in previously instituted suit, the suit should be stayed. Considering this law we now come to the facts of the present case. 3. Lal Din, petitioner herein filed a suit against Moh'd Din and others in the Court of Sub-Judge, Poonch on 31-12-1980 alleging himself to be in possession of the land comprised in Khasra No. 833 situate in village Sangla, Tehsil Mendhar and sought injunction against the defendants mentioned therein restraining them from interfering in his possession. In the present case Suleman, Faqir Moh'd, Bashir Ahmed, Lal Hussain and Nazir Hussain, who are defendants in the previously instituted suit, have filed suit on 9-1-1981 in regard to the same land claiming themselves to be in possession of the same and prayed for restraining the defendants mentioned in the case from interfering in their possession. It thus comes out from the reliefs claimed in both the suits that the matter in issue in the subsequently instituted suit is directly and substantially in issue in the previously instituted suit. The jurisdiction of the Court to try both the suits, is also not disputed. No doubt, some defendants have been added in the present suit whose names do not appear in the previously instituted suit. Apart from the disputes and differences between the parties, in the two suits, the Court should find out whether the suit which is to be stayed would be disposed of on the basis of the decision in the other suit on the principle of actual or constructive res judicata. The entire object of the said Section is to avoid multiplicity of the proceedings an the controversy between the parties and also conflict of judgements. As the matter in issue in the second instituted suit is directly and substantially in issue in the previously instituted suit, mere addition of some of the defendants in the subsequent suit, will not make the provisions of S.10, C.P.C. inapplicable.;
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