1. This is a civil revision petition filed against the order made by the Principal District Munsif of Kasargod in I. A. No. 60 of 1952 in O. S. No. 392 of 1951.
2. The facts are: O. S. No. 773 of 1947 was filed by Shankar Ejaman, first defendant in O. S. No. 392 of 1951 against Venkappa Bhatta, the plaintiff in O. S. No. 392 of 1951 and others for a declaration that the property, the subject matter of the present suit, belonged to him and for an injunction for restraining respondents from interfering with petitioner's possession. The suit was dismissed. On that an appeal had been filed in the District Court of South Kanara and it is stated to be pending.
3. Venkappa Bhatta has thereupon filed this O. S. No. 392 of 1951 against Kunhi Shankar Ejaman (first defendant) and Krishna Bhatta (D. 2) asking for surrender of possession of the property involved in the prior suit and which was pending appeal and for mesne profits.
4. In these circumstances these defendants filed an application under Section 10, Civil P. C. to stay the trial of the suit O. S. No. 392 of 1951 till the disposal of the appeal filed against the decree in O. S. No. 773 of 1947. This application was rejected by the District Munsif in a confused order. Hence this civil revision petition.
5. There can be no doubt that the order of the lower court cannot be supported because the provisions of Section 10, Civil P. C. are mandatory and leave no discretion to the courts in respect of stay of suits when the circumstances are such as to invoke the operation of that section and which it cannot be seriously disputed is the case in regard to the instant matter. When an appeal has been preferred from a decree in a previous suit, the court should stay a subsequent suit: -- 'Chinnakarupan Chetty v. Meyyappa Chetty', A. I. R. 1916 Mad 732 (A). See also -- 'Annamalay Chetty v. Thornhill', AIR 1931 PC 263 (B) and -- 'Jamani Nath Mallick v. Midnapore Zamindari Co.' : AIR1931Cal779 . In fact the learned District Munsif himself has indicated that If Kunhi Shankar Ejaman succeeds in the appeal, this suit O. S. No. 392 of 1951 will have to be dismissed. The consideration which seems to have weighed with the lower court was that this Shankar Ejaman would not be content even if he were defeated in the first appeal but would prefer a second appeal. To my mind this is neither here nor there. If Shankar Ejaman is entitled to prefer a second appeal and that second appeal gets admitted, certainly the disposal of this suit will have to await the disposal of the said second appeal. In --'Jinnat Bibi v. Howrah Jute Mill Co. Ltd.' : AIR1932Cal751 , where a contention of this nature was raised, it was repelled in the following terms:
'Petitioner's prayer to the trial court was that the suit be stayed till the final disposal of the previous suit, but the trial court rejected the prayer. By the rule of the High Court the opposite party was called upon to show cause why the suit should not be stayed during the pendency of appeal in the previous suit. Since the rule was Issued, the appeal referred to thereinwas dismissed and second appeal was preferred in the High Court. The petitioner then prayed that the rule be extended to cover the second appeal, 'Held': that the scope of the rule should fee extended so as to cover second appeal pending in High Court.'
6. It was incidentally pointed out that one test of the applicability of Section 10 to a particular case is whether on the final decision being reached in the previous suit, such decision would operate as 'res judicata' in the subsequent suit. -- 'Krishna-rao v. Shridhar', , (E) -- 'Dur-gaprasad v. Kantichandra' : AIR1939Cal1 ,'Trikamdas Jethabhai v. Jivraj Kalianji', : AIR1942Bom314 (G) and -- 'Liladhar v. Firm Radha-kishan Ramsahaya', A. I. R. 1946 Nag 5 (H). There cannot be the slightest doubt that it is so in this case. It is not necessary for the applicability of the section that the subject matter and the cause of action should be as was implied in the arguments at the Bar here the same: -- 'P. E. Dinshaw V. J. C. Galstaun', : AIR1927Bom245 (I). But what is essential is that there must be 'substantial identity between the matters in dispute and parties' in the earlier and later suits. -- 'Mulchand Baichand v. Gill and Co.', A. I. R. 1920 Bom 296 (J), -- 'Kubaran Nambudri v. Koman Nair', AIR 1925 Mad 574 (K). It is not sufficient that there are 'some issues common' to the two suits. --Mahaganpathi v. Natesa Iyer' : AIR1935Mad112 'Sreeramulu v. Sreeramulu', A. I. R. 1922 Mad 304 (M), -- 'Gargi Din v. Debicharan' : AIR1929All805 'Shannan Kuer v. Sahadeo Singh', AIR 1929 Oudh 341 (O); --'Mackenzie & Co. Ltd. v. E. H. Parakh', (P). Once that substantial identity is made out the court has power to stay a second suit pending the disposal of a prior one between the same parties under Section 10 and also under Section 151, C.P. G. and C. P. C. Order 39 Rule 1: -- 'Dwarkadas v. Governor General of India in Council', A. I. R. 1947 Lah 28 (Q), -- 'Dhanraj and Co. v. Babulal Ramchandar', : AIR1943Bom206 (R) and --Ramnicklal v. Vivekanand Mills Co. Ltd.', 49 Cal WN 58 (S).
7. In the result, the order of the lower court is set aside and this civil revision petition is allowed with costs.