THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No.5690 OF 2007 DATED: 22.03.2011 Between: Thota Satyanarayana. .... PETITIONER And Thota Nirmala & 4 others. .... RESPONDENTS ORDER: This Civil Revision Petition is directed against the order, dated 19.11.2007, in I.A.No.889 of 2005 in O.S.No.37 of 2003 on the file learned Additional District Judge, Visakhapatnam, wherein the said application filed by the respondents 1 to 3 herein under Section 10 CPC, was allowed, staying further proceedings in the said suit pending disposal of A.S.No.2633 of 2004 pending before this Court. 2. Heard learned counsel for the petitioner-plaintiff and the learned counsel for the respondents-defendants. Perused the record. 3. Petitioner herein filed the suit-O.S.37 of 2003 against the respondents herein (defendant Nos.1 to 5) for partition of the plaint ‘A’ and ‘B’ schedule properties into three equal shares and for allotment of one such share to the plaintiff. Defendants filed written statement contesting the suit. Respondents 3 to 5, who are the legal representatives of the deceased-1st defendant, filed I.A.No.889 of 2005 under Section 10 CPC for stay of further proceedings on the ground that A.S.No.2633 of 2004 arising out of the judgment and decree in O.S.No.40 of 2000 on the file of the learned Senior Civil Judge, Gajuwaka, is pending. According to the respondents 1 to 3, items 1 to 3 of the plaint ‘B’ schedule were purchased by the 1st defendant during his life time from his own funds and he permitted the plaintiff and the 2nd defendant to reside in two rooms and on demand by the 1st defendant, the 2nd defendant vacated but the plaintiff refused to vacate and thereafter the 1st defendant filed O.S.No.40 of 2000 for declaration of title and recovery of possession and after contest the said suit was dismissed and the appeal filed by the plaintiff herein, who is the defendant in that suit, is pending. Petitioner herein-plaintiff filed a counter opposing the said application on the ground that the said suit-O.S.No.40 of 2000 was confined only to a portion of the plaint ‘B’ schedule herein, whereas the present suit covers other items also in respect of which partition is sought and the present suit being more comprehensive in nature, cannot be stayed awaiting the disposal of A.S.No.2633 of 2004. 4. Admittedly, the present suit is one for partition of plaint ‘A’ and ‘B’ schedule properties pending before the learned VI Additional District Judge, Visakhapatnam. The earlier suit-O.S.No.40 of 2000 though between the same parties was in respect of only a portion of the plaint schedule properties herein and is confined to plaint ‘B’ schedule. No doubt, the earlier suit-O.S.No.40 of 2000 was dismissed and the appeal preferred by the plaintiffs therein i.e. respondents 1 to 3 herein is pending. Simply because the appeal is pending in respect of a portion of the house property comprised in plaint ‘B’ schedule herein, the present suit-O.S.No.37 of 2003, which is filed for comprehensive relief of partition of all the properties including the suit property in O.S.No.40 of 2000, need not be stayed pending disposal of the appeal. The question of granting stay of further proceedings in O.S.No.37 of 2003, under Section 10 CPC, on the ground of avoiding multiplicity of proceedings, does not arise inasmuch as the nature of the suits and the subject-matter of the two suits are different though the parties are one and the same. The fact that a portion of the plaint schedule property herein was the subject-matter of the earlier suit- O.S.No.40 of 2000 between the parties does not afford a valid and justifiable ground for grant of stay of further proceedings in the subsequent suit-O.S.No.37 of 2003 under Section 10 CPC. 5. The ingredients of Section 10 CPC are not attracted to the facts of the present case. The impugned order, granting stay of further proceedings in O.S.No.37 of 2003 pending disposal of A.S.No.2633 of 2004 on the ground that the substantial issue is one and the same in both the suits, is not sustainable and the same is accordingly set aside. Consequently, I.A.No.889 of 2004 filed by the respondents 1 to 3 herein stands dismissed. 6. Accordingly, Civil Revision Petition is allowed. There shall be no order as to costs. _______________________ G.V.SEETHAPATHY, J 22nd March, 2011. Note: Furnish C.C. of the order within one week. B/o Tsy