HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.2697 of 2​007 ORDER:- The petitioner, a lady, in this revision is the plaintiff in the suit O.S.No.28 of 2004 on the file of the Family Court at Visakhapatnam. She filed this revision questioning the order dated 28.02.2007 passed in I.A.No.53 of 2005 by the Family Court under Section 10 of the Code of Civil Procedure (CPC) staying all further proceedings in her suit. The said application under Section 10 CPC was filed by the defendant. 2. The point that arises for determination in this revision is whether this Court should now decide about the merits in the said I.A.No.53 of 2005 regarding the applicability or non-applicability of Section 10 CPC to the matter or the matter should be remanded back to the Family Court for a fresh decision after considering all the relevant aspects in the case. To decide this point the circumstances leading to the filing of this revision and the respective contentions of the parties should be noted. 3. The petitioner brought her suit O.S.No.28 of 2004 under Clause (b) of the Explanation to Section 7 of the Family Courts Act, 1984 (for short Act) for a declaration that she is the legally wedded wife of one late Chaganti Srinivas S/o Sriramulu and that the defendant therein is not his legally wedded wife. She says that her marriage with late Srinivas took place on 18.03.1994 at Ernagudem of West Godavari District and they both lived within the jurisdiction of the Family Court, Visakhapatnam during the relevant time which allegedly gives jurisdiction to it to decide her suit. 4. After entering appearance in the suit, the defendant who is also a lady filed the petition i.e. I.A.No.53 of 2005 under Section 10 CPC seeking stay of all further proceedings in the said suit on the ground that in the common judgment dated 19.01.2002 passed in six suits on the file of the Court of I Additional Senior Civil Judge at Visakahpatnam, the said Court already decided that dispute between them and rejected the case of the plaintiff that she is the legally wedded wife of late Chaganti Srinivas and that appeals are pending in this Court against the said Judgment and consequently the proceedings in the present suit in question should be stayed. The particulars of the said six suits are given in the petition and they are O.S.No.40 of 1996, O.S.No.605 of 1995, O.S.No.179 of 1995, O.S.No.663 of 1995, O.S.No.664 of 1995 and O.S.No.529 of 1995. A copy of the common judgment passed in the aforesaid six suits by the Court of the I Additional Senior Civil Judge, Visakhapatnam has been filed and there is no dispute about that copy. A perusal of the said common judgment would also show that the said six suits pertain to the reliefs of partition claimed by both the parties herein and certain other suits filed by both parties for certain other amounts belonging to Chaganti Srinivas and other reliefs. It is not necessary to go into those details. It is also true that the said common judgment shows that the Court of the I Additional Senior Civil Judge, Visakhapatnam dealt with the question of validity of the marriage of the petitioner herein with the said Srinivas and it held that the said marriage cannot be treated as a valid one. 5. The Family Court after considering the above contention of the defendant by its impugned order dated 28.02.2007 allowed the said petition i.e. I.A.No.53 of 2005 of the defendant and stayed all further proceedings in the suit applying the rule in Section 10 CPC and that order is now as already mentioned supra questioned in this revision. 6. The learned counsel for the plaintiff in the above suit i.e. the petitioner herein and the learned counsel for the defendant i.e. the respondent herein raised several contentions regarding the applicability or non-applicability of Section 10 CPC. The learned counsel for the plaintiff in support of his contention to show that Section 10 CPC is not applicable relied upon a decision of our Supreme Court given in NATIONAL INSTITUTE OF MENTAL HEALTH & NEURO SCIENCES vs. C. PARAMESHWARA[1]. On the other hand the learned counsel for the defendant in support of his contention that Section 10 CPC would be applicable relied upon two decisions of our Supreme Court one given in ISWAR DUTT vs. LAND ACQUISITION COLLECTOR[2] and the other given in SULOCHANA AMMA vs. NARAYANAN NAIR[3]. The above decisions are not helpful by themselves to decide the controversy in this revision though there cannot be any dispute about the propositions laid down therein in view of the following reasons which show that the matter should be remanded back to the Family Court. 7. It may be noted that to apply Section 10 CPC and to stay all further proceedings in a suit the test to be applied is whether the findings which may be recorded in the previously instituted suit or the judgment in a previously instituted suit which is the subject matter of an appeal between the same parties would operate as res judicata in such subsequently instituted suit between the parties. The object of the Section is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The other requirements are the matters which are directly and substantially in issue in the suit of which stay is sought, must also be directly and substantially in issue in the previously instituted suit and it is not enough only if some of the issues are common. 8. In the present case the contention of the defendant is that the question or issue of validity of marriage of the plaintiff with late Srinivas was already decided against her in the six suits mentioned supra earlier decided by the Court of I Additional Senior Civil Judge, Visakhapatnam. The trial Court did not examine what were the pleadings in the said six suits and what were the issues raised in them and what were the reliefs claimed in them and how the common judgment in the said six suits may raise an issue of res judicata in the present suit. The pleadings in the said six suits are not before this Court. In fact for any Court to decide as to what were the issues that were directly and substantially in issue in the earlier suit and whether they are also directly and substantially in issue in the subsequent suit in which proceedings are sought to be stayed, the Court is required to go through the pleadings of the earlier suit and the issues framed therein and with reference to the relief sought for. The Family Court did not examine these aspects and it passed the impugned order observing that since the validity of the marriage of the plaintiff with late Srinivas was already decided against her in the said six suits and as appeal is pending against them the proceedings in the present suit of the plaintiff should be stayed. This approach of the Family Court in the present matter in my opinion cannot be said to be correct and the said Court should have examined the above aspect before reaching the conclusion in the matter one way or the other. 9. Without doing that exercise the legal principles governing the application of Section 10 CPC cannot be applied as the same have to be applied on the facts ascertained from the pleadings and issues in both the suits. For this reason the decisions cited by both sides are not considered through there is no dispute about the proposition laid down therein. In view of this it follows that the matter has to be remanded back to the Family Court for examining the above aspects and recording its findings on the same. 10. At the time of arguments in this revision a further question arose whether the exercise of jurisdiction by the Family Court in the present suit in which a declaration is sought for that the petitioner/plaintiff, and not the defendant, is the legally wedded wife of late Srinivas can be said to be exercise of matrimonial jurisdiction falling within the scope of Section 41 of the Evidence Act which deals with judgments in rem and if so whether its findings on the said question become conclusive proof in the matter irrespective of the findings given by a Court which does not exercise such jurisdiction. The Court of Senior Civil Judge which disposed of the earlier six suits admittedly did not exercise the matrimonial jurisdiction in disposing of the said suits. This question was not raised and argued before the Family Court. It may be noted that Section 41 of the Evidence Act speaks of judgments in rem and it says that a final judgment, order or decree of a competent Court given in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, shall be conclusive proof regarding any legal character which it confers upon a person or declares any person to be entitled to such character. 11. Section 8 of the Act says that where a Family Court is established for any area, such Court will have exclusive jurisdiction in respect of any dispute or claim falling in the Explanation to Section 7 of the Act. As already noted supra, the present suit is filed for the relief of declaration stated supra under Clause (b) of the Explanation to Section 7 of the Act. Thus the question whether exercise of jurisdiction by the Family Court would fall under the exercise of matrimonial jurisdiction contemplated under Section 41 of the Evidence Act has to be decided. If the judgment of the Family Court which is to be given in the present suit is held to be a judgment in rem as given in exercise of its matrimonial jurisdiction it may prevail over the judgment of the Senior Civil Judge’s Court in the six suits relied upon by the defendant. This question about the jurisdiction of the Family Court may be a question of law but nevertheless the first question mentioned above and also the third question which is now proposed to be given infra require a decision by the Family Court. Hence I am of the opinion that this question must also be left open to be decided by it. 12. The other question i.e. the third question which arises is whether the plaintiff has impleaded all the necessary parties to her suit. In this connection it may be noted that if the plaintiff, and not the defendant, is declared as the legally wedded wife of late Srinivas by the Family Court then the rights of the other heirs of late Srinivas to his properties including any joint family properties would be affected and there may be change in the shares. This aspect has to be considered as Srinivas is no more. Thus incidentally the other question would be whether the non- impleadment of such heirs of late Srinivas would be fatal to the suit. This question has also to be decided and depending upon the contentions of the parties it may necessitate even impleadment of other heirs of late Srinivas who may become necessary parties. 13. The Family Court did not consider the above questions and it merely placed reliance upon the aforesaid judgment of the Senior Civil Judge’s Court in the six suits and passed the impugned order. This approach of the Family Court, in my opinion, cannot be said to be correct. For the aforesaid reasons I am of the opinion that the matter should be remitted back to the Family Court to consider the above questions and also other questions which may be raised by both parties and decide the matter afresh considering all aspects which govern the applicability or non- applicability of Section 10 CPC. 14. Accordingly, this revision is allowed and the impugned order is set aside and the matter is remanded back to the Family Court for fresh decision in the matter. No costs. ______________________ N. RAVI SHANKAR, J 22nd March 2011 CVRK [1] (2005) 2 SCC 256 [2] (2005) 7 SCC 190 [3] AIR 1994 SC 152