- (1.) The present petitioner by way of filing this petition under Article 227 of the Constitution of India has prayed for quashing of the order dated 15.3.2012 in Partition Suit No. 20 of 2003 passed by the learned Civil Judge (Junior Division)-II, Garhwa whereby the learned Court below passed an order to reject the petition dated 20.10.2011 filed by the plaintiff to proceed Partition Suit No. 34 of 2003 jointly for common issues of partition amongst the parties. Heard the learned counsel appearing for the petitioner-plaintiff and perused the impugned order as well as the materials placed on record.
(2.) It appears that two separate suits have been filed amongst the same parties. One was filed by the petitioner-plaintiff against the defendants-brothers. Subsequently defendants Nos. 12 and 13 preferred another suit in respect of same property in question. It appears that application was moved by the petitioner-plaintiff to proceed further in Partition Suit No. 20 of 2003 alongwith Partition Suit No. 34 of 2003, jointly for common issues of partition amongst the parties. The court below rejected the said application by observing that if separate judgments are passed in both the suit, certainly there may be possibility of contradictory finding over aforesaid first issue due to laches of parties concerned. It was further observed that there is no provision in C.P.C. for joint/common trial of separate suits and directed the parties to agitate the matter again during argument of both suits so that arguments can be heard simultaneously. Since two suits have been filed in respect of same property amongst the brothers for partition of the property in question this court is of the view that the direction given by the learned court below to agitate the matter at the time of argument is not correct as the possibility of contradictory findings on the same issue cannot be ruled out. Moreover, Section 10 of the CPC provides for stay of subsequent suit where the issues and parties of both the suits are same. The Hon'ble Apex Court has also in the case of National Institute of Mental Health and Neuro Sciences vs. C. Parameshwara, 2005 2 SCC 256 while dealing with two identical cases, held in Para 8 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 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. In view of above position, the impugned order dated 15.3.2012 passed in Partition Suit No. 20/03 is hereby quashed and set aside. The petitioner will be at liberty to move application u/s. 10 of C.P.C. before the court below. As and when such application is moved the court below shall decide the same in accordance with law.;