1 SB Civil Writ Petition No.5125/2008 Abdul Qadir. vs. Devi Singh. S.B. Civil Writ Petition No.5125/2008 Abdul Qadir. vs. Devi Singh. Date : 9.1.2009 HON'BLE MR. PRAKASH TATIA, J. Mr.OP Mehta, for the petitioner. Mr.RK Thanvi, for the respondent. - - - - - Heard learned counsels for the parties. The petitioner/defendant is aggrieved against the order dated 14.3.2008 passed by the Court of Additional District Judge (FT) No.2, Jodhpur in suit no.514/2003 by which the petitioner's application filed under Section 10 CPC was rejected. According to the petitioner/defendant, the respondent/plaintiff gave notices on the basis of three pronotes and filed one suit no.44/2004 which was decided by the Court of A.D.J. No.3, Jodhpur vide judgment and decree dated 20.5.2006. According to the petitioner in the said suit 2 SB Civil Writ Petition No.5125/2008 Abdul Qadir. vs. Devi Singh. no.44/2004, a specific issue was framed by the trial court that whether the plaintiff is doing the business of money lending and if so, what is its effect on the suit. In the decision given by the trial court in the suit no.44/2004, the trial court held that the plaintiff is money lender, therefore, the plaintiff's suit is not maintainable. The petitioner's application filed under Section 10 CPC in suit no.514/2003 was rejected by the trial court only on the ground that in earlier filed suit and in the present suit, the causes of action are separate and independent. Learned counsel for the petitioner submitted that the court below has committed serious error of jurisdiction as the Court proceeded on assumption that there is no common issue in two suits. In fact, the issue in earlier suit with respect to the plaintiff being money lender is also involved in the present suit which is clear from the copies of the issues framed in this suit no.514/2003 and if read with the issues framed in the suit no.44/2004 (Annex.6). Decision of said issue in earlier suit will be binding and even suit of the plaintiff will be liable to be dismissed if 3 SB Civil Writ Petition No.5125/2008 Abdul Qadir. vs. Devi Singh. finding on said issue will be in the petitioner/defendant's favour. Learned counsel for the respondent/plaintiff vehemently submitted that the petitioner on earlier occasion filed the same application under Section 10 CPC and that was rejected by the trial court vide order dated 26.10.2004 and this fact has been taken note of by the trial court while rejecting the petitioner's subsequent application vide order dated 14.3.2008. I considered the submissions of learned counsel for the parties and perused the issues framed in the two suits as well as the order by which the petitioner's application under Section 10 CPC was dismissed by the trial court on earlier occasion, copy of which has been shown by the respondent. So far as the impugned order dated 14.3.2008 is concerned, that has been passed only on the ground that the cause of action in two suits are different and it has not been rejected on the ground that since the petitioner's earlier 4 SB Civil Writ Petition No.5125/2008 Abdul Qadir. vs. Devi Singh. application was rejected, therefore, his second application is not maintainable. A bare perusal of the order dated 26.10.2004 reveals that the said application of the petitioner was rejected as it was submitted before even filing the written statement and, therefore, the trial court observed that the pronotes are different, amounts are different and causes of action are different in two suits and, therefore, the issues are also different. It will be worthwhile to mention here that at that stage, neither the written statement was filed nor the issues were framed, therefore, the court may have proceeded on assumption that there may not be same issue in the two suits. Admittedly, thereafter, the issues have been framed in the present case also. The issue which has been framed by the trial court is whether the plaintiff is money lender ? That issue may go to the root of the matter and, therefore, there cannot be second trial during pendency of first trial on the issue as per Section 10 CPC. Because of the reasons mentioned above, it is clear that the trial court proceeded absolutely erroneous, vaguely and committed error of law by 5 SB Civil Writ Petition No.5125/2008 Abdul Qadir. vs. Devi Singh. virtually not reading the issues framed in the two suits. In view of the above, this writ petition is allowed, the order dated 14.3.2008 is set aside and the proceedings of suit no.514/2003 is stayed till the final decision of the suit no.44/2004 which is pending at the first appellate stage at present time. (PRAKASH TATIA), J. S.Phophaliya