1. The plaintiffs in O. S. No. 1430 of 1968 on the file of the District Munsif Court, Salem, are the petitioners. The revision petition is directed against an order of the District Munsif, Salem, in I. A. No. 1235 of 1971, refusing to stay the trial of O. S. No. 1430 of 1968 pending in his Court pending disposal of A. S. No. 143 of 1971 on the file of the District Court of Salem. The petitioners' case is that they filed previously O. S. No. 1460 of 1967 on the file of the District Munsif Court of Salem, for the issue of a mandatory and permanent injunction in respect of the user of the scavenging lane in which the defendant had put up a latrine and for other relief's. That suit was dismissed and A. S. 143 of 1971 on the file of the District Court, Salem is the appeal against the said judgment and decree. During the pendency of the above appeal the same plaintiff filed O. S. No. 1430 of 1968 for damages for diverting the sullage water flowing from the latrine into the scavenging lane damaging the plaintiff's wall and for other relief's. The plaintiffs have filed the present application for stay of trial under Section 10 Civil P. C. of O. S. No. 1430 of 1968, pending disposal of A. S. 143 of 1971 on the file of the District Court, Salem. The case of the plaintiffs (petitioners) is that the parties to the two suits are identical that the subject-matter of the two suits is substantially the same and that therefore, the trial of the later suit should be stayed pending final determination of the earlier suit. The respondent's (defendant's) case is that the cause of action in both the suits is different that title to the suit lane in not in question in the two suits, that in the later suit damages are claimed on the ground that the plaintiffs' wall has been damaged by the sullage water from the latrine, that whatever decision is rendered in the appeal, the later suit may be proceeded with and that the issues in the two suits are entirely different. The trial Court upheld the defense and dismissed the application. The plaintiffs have filed the above revision petition.
2. The contention of the learned counsel for the petitioners-plaintiffs is that the subject-matter of the two suits is substantially the same though the relief's prayed for in the later suit may be different from the relief's prayed for in the earlier suit and the cause of action in the two suits may be different. In my view, the principal question to be decided in the first suit is about the existence of the latrine in the suit lane and its continuance and once it is finally determined in the earlier proceeding that the defendant has validly put up the latrine the would operate as res judicata in the later suit now pending. As stated by Ramaswami, J. in Kunhi Sankara Elaman v. Venkappa Bhatta, (1953) 66 Mad LW 790, the test for applicability of Section 10 is to see whether the final decision in a previous suit would operate as res judicata in the subsequent suit. It is not necessary that the subject-matter and cause of action in the two suits should be identical. In the present case, there is substantial identity between the matters in dispute in the earlier and the later suits. I am therefore, of opinion that the order of the Court below cannot be sustained. The revision petition is allowed. There will be no order as to costs. I however, direct the District Judge Salem, to dispose of A. S. 143 of 1971 on his file now transferred to the Sub-Court, Salem, at an early date.
3. Revision allowed.