1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5871 OF 2009 1. Smt. Sheshabai w/o. Shriram Kamble, Age 50 yrs., Occu. Household, 2. Amol s/o. Shriram Kamble, Age 24 yrs., Occu. Labour, 3. Chandrakant s/o. Shriram Kamble, Age 16 yrs., Occu. Education, All R/o. Limbuni Nagar, Nanded Road, Latur, Tq. & Dist. Latur. ....Petitioners. Versus Anita w/o. Shrimant Kamble, Age 28 yrs., Occu. Household, R/o. Anand Nagar, Latur, Tq. & Dist. Latur. ....Respondent. Shri. Ashish Jadhavar Advocate h/f. Shri. N.P. Patil-Jamalpurkar, Advocate for petitioners. Shri. Parikshit Darak Advocate h/f. Shri. R.P. Adgaonkar, Advocate for respondent. CORAM : R.K. DESHPANDE, J. DATE : 9th June, 2010. ORAL JUDGMENT : 1. This petition has been preferred by the original defendants, challenging the order dated 8.8.2009 passed by the 5th Joint Civil Judge, Junior Division, Latur, rejecting the application filed under section 10 of the Civil Procedure Code by the defendants for stay of the suit, on the ground that the Regular Civil Suit No. 97/2006 relating to the same 2 property is already pending in the Court of 7th Joint Civil Judge, Junior Division, Latur. The Trial Court has rejected the application on the ground that the cause of actions for both the suits are distinct and the provisions of section 10 of C.P.C. are not at all attracted. 2. Notice before admission was issued by this Court on 10th September 2009. Shri. Parikshit Darak holding for Shri. R.P. Adgaonkar, learned counsel appears for the respondent sole. The learned counsel for parties agree that the matter may be finally disposed of at the stage of admission. Hence, Rule, made returnable forthwith. Heard the matter with consent of parties. 3. Section 10 of C.P.C., which is relevant to decide the controversy, is reproduced below :- "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. Section 10 reveals that merely because the parties are the same 3 and the property is the same, that is not enough, but what the Court is further required to see is that the matter which is directly and substantially in issue in the pending/previous suit is also the same in the subsequent suit. The issues in the earlier suit are framed. The Trial Court has not referred to the issues framed in the previous suit. No issues are framed in a subsequent suit, that is what the learned counsel for the parties inform. However, even if the issues are framed, the same are not referred to. The application seems to be premature. In view of this, the learned counsel for the petitioners seek permission to withdraw the application, Exh. 20, with liberty to file afresh after issues are framed by the Trial Court in Regular Civil Suit No. 648/2008. 4. In view of above, the applicants/petitioners are permitted to withdraw the application, Exh. 20, with liberty to file afresh after issues are framed. In view of this, the instant writ petition becomes infructuous and the order dated 8.8.2009 has became ineffective. It is however made clear that while deciding any such fresh application, if made, the Trial Court shall not be influenced by any of the observations made by this Court in this judgment. Writ petition stands disposed of as above with no order as to costs. [ R.K. DESHPANDE, J. ] ssc/wp5871.09