-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7424 OF 2005 WRIT PETITION NO. 7424 OF 2005 WRIT PETITION NO. 7424 OF 2005 Shankar Digambar Bansode .. Petitioner. V/s. 1. Govind Venkatesh Bansode & Ors. .. Respondents. --- Mr. G.S.Godbole for the Petitioner. Mr.G.M.Savagave for the Respondent No.1. --- CORAM : S.C.DHARMADHIKARI,J. CORAM : S.C.DHARMADHIKARI,J. CORAM : S.C.DHARMADHIKARI,J. DATED : 21ST JANUARY, 2008. DATED : 21ST JANUARY, 2008. DATED : 21ST JANUARY, 2008. P.C. : P.C. : P.C. :- . This petition under Article 227 of the Constitution of India, challenges the order passed by the trial court on the application being Exh.109 in the Regular Civil Suit No. 113 of 2002. That application was preferred by the original defendant Nos. 1 to 5, invoking the jurisdiction of the trial court under section 10 of the C.P.C.. 2. It was their case before the trial court that the subject matter of the suit was two house properties at Pandharpur. After referring to the genealogy, it was contended in Exh. 109 that the petitioners who are original applicants include one Shankar Digambar -: 2 :- Bansode. The original plaintiff Govind Veyankatesh Bansode is the real brother of Hari Mahadeo Bansode. The said Hari Mahadeo Bansode had filed civil suit against the plaintiff Govind Veyankatesh Bansode and the present defendant No.5- Shankar Digambar Bansode being regular civil suit No. 37/1986. That suit involved some agricultural lands in Madha taluka of Dist. Solapur. In that civil suit Govind (who was original defendant No.10 therein) had filed his written statement and had contended that the mother of the defendant No.5 in the present suit (deceased Chingubai) cannot claim any right, title and interest in the property of her husband. It was contended that since the said civil suit was for partition the Bansode families were equally concerned and involved. A reference was made to the issues that were framed in that suit and the findings given thereon. Finding on the issue No.4 which is in the affirmative was highlighted by the present petitioner. My attention was also invited to issues Nos. 5 and 6. It was pointed out that the said civil suit No.37/1986 was decided on 27th January, 1998. Aggrieved by the said decision, the plaintiff in the present suit, Govind had filed regular civil Appeal bearing No. 116/1998 in the District Court Solapur and the said appeal is pending. Thereafter, my attention was invited to the issues involved in the suit as also -: 3 :- in the pending appeal. In other words, it was contended that the Adoption deed and the will were the subject matter of the proceedings in the earlier suit and even the issues arising there from are pending in the regular civil appeal, it is in such a situation the trial court should have exercised its powers under section 10 and stayed the hearing of the civil suit presently filed namely R.C.S.Suit No.113 of 2002. That application was rejected and that is how the petitioners, original defendants No.1 to 5 are before me. 3. Although the learned Judge has referred the proceedings between the parties including the civil suit and the pending civil appeal, yet the learned Judge has not adverted to certain basic and fundamental aspects of the matter. The learned Judge ought to have addressed himself to the fact that a matter being already in issue or not in earlier suit and if all the ingredients of section 10 are satisfied or not. Merely because earlier suit is decided and an appeal therefrom is pending would not attract section 10 of the C.P.C., is the finding. In other words, whether the appeal is a continuation of the proceedings or not or whether the parties to the said appeal and the present civil suit are common or not or whether the matter involved therein is substantially in issue in the present suit or not. That all these -: 4 :- aspects have been gone into, must be apparent from the order itself. The learned judge has referred to the rival contentions and after framing points purported to answer the same in para 7 of the impugned order. 4. In my opinion, para -7 of the impugned order does not indicate that the learned Judge has applied his mind to the ingredients of section 10 and whether they are satisfied in the facts and circumstances of the present case. There is no reference to the rival pleadings in the earlier suit and in the present suit. The learned Judge has also not considered other ingredients of section 10. Section 10 of the C.P.C. applies when the ingredients set out therein are satisfied. Whether they are satisfied or not must be decided by referring to the controversy involved in the earlier suit and the suit wherein the application under section 10 is filed. In the facts of the present case that is not clear to me at all. Whether the conclusions drawn by the learned Judge in para-7 are based upon the pleadings in both suits and the properties involved therein is also not clear to me. The learned Judge should have taken into consideration the object and purpose of Sectoin 10 of the CPC. In National Institute National Institute National Institute of Mental Health & Neuro Sciences vs. C. Parameshwara of Mental Health & Neuro Sciences vs. C. Parameshwara of Mental Health & Neuro Sciences vs. C. Parameshwara reported in AIR 2005 SC 242 reported in AIR 2005 SC 242 reported in AIR 2005 SC 242, Hon’ble Supreme Court has -: 5 :- held as under : "8. The object underlying sectoin 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 contra-distinction 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." 5. In these circumstances, I am of the view that interest of justice would be subserved if the order dated 30th June, 2005 is quashed and set aside and the application Exh.109 is restored to the file of the civil Judge, Sr. Division, Pandharpur for being decided afresh in accordance with law. All contentions of both -: 6 :- sides are expressly kept open. Although this court has remanded the matter, it is clarified that it has not formed any opinion about the ingredients of section 10 being satisfied or not. This aspect must be decided by the trial court and that must be done without being influenced by any of the observations made earlier. 6. Considering the advance age of the plaintiff it is directed that the parties should appear before the trial court on 4th of February, 2008 and the trial court shall make endeavour to dispose of the pending application as expeditiously as possible and within a period of six weeks from the date of appearance of the parties before it and production of the copy of this order. 7. Petition is disposed of accordingly. No order as to costs. (S.C.DHARMADHIKARI,J.) .....