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Narikkote Kunnamangalath Ithisseri Kuberan Nambudri Vs. Pothua Kalloor Koman Nair - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in88Ind.Cas.421
AppellantNarikkote Kunnamangalath Ithisseri Kuberan Nambudri
RespondentPothua Kalloor Koman Nair
Cases ReferredSriramulu v. Sreeramula
Excerpt:
civil procedure code (act v of 1908), section 10 - stay of suit--'matter in issue', meaning of--issue common to both suits, whether sufficient. - .....after a second appeal by this court. the defendant in this suit put in an application to the district munsifs court under section 10 of the c.p.c. for staying the trial of this suit pending the disposal of that appeal which is still pending. the district munsif made an order of stay. i think the order of the district munsif was wrong. under section 10 of the c.p.c. it is necessary that the matter in issue must be directly and substantially in issue in both the suits. the learned counsel for the respondent argued that the expression 'matter in issue' should be construed as meaning merely the main question involved in the suit, and his contention was that as the issue relating to the adoption was the main question in the suit as well as in the present suit, the order of the district.....
Judgment:

Srinivasa Aiyangar, J.

1. This is a civil revision petition by the plaintiff in O.S. No. 82 of 1918, on the file of the District Munsifs Court of Taliparamba. The suit was for redemption of certain lands by the plaintiff, and one of the issues raised was whether the plaintiff who claimed under an adoption had been validly adopted. It appears that in a previous action between the plaintiff and the 1st defendant, the same issue had been raised and is now pending disposal in an appeal before the District Judge of South Malabar, having been remanded after a second appeal by this Court. The defendant in this suit put in an application to the District Munsifs Court under Section 10 of the C.P.C. for staying the trial of this suit pending the disposal of that appeal which is still pending. The District Munsif made an order of stay. I think the order of the District Munsif was wrong. Under Section 10 of the C.P.C. it is necessary that the matter in issue must be directly and substantially in issue in both the suits. The learned Counsel for the respondent argued that the expression 'matter in issue' should be construed as meaning merely the main question involved in the suit, and his contention was that as the issue relating to the adoption was the main question in the suit as well as in the present suit, the order of the District Munsif was right. But I do not think that the expression 'matter in issue' can be so construed. I believe the real intention of the Legislature in framing Section 10 of the C.P.C. was merely to prevent later suits relating to the same subject-matter being tried before an earlier suit relating to the same subject-matter is tried and disposed of. Otherwise the result will be that if any issue should be common to two suits, the later suit could never possibly be disposed of before the earlier suit. But we know that the law recognizes that the decision even in a later suit may operate us res judicata in a suit which has been really instituted previously. There is also direct authority, for the position reported as Sriramulu v. Sreeramula 70 Ind. Cas. 682 : 15 L.W. 640 : A.I.R. (1922) (M.) 304 : 31 M.L.T. 360 where Mr. Justice Venkatasubba Rao construing this very section has, after referring to the previous decisions, come to the conclusion that the expression 'matter in issue' in Section 10 has reference to the entire subject in controversy between the parties. The order of the District Munsif is set aside and the petition is allowed. The respondent will pay the petitioner's costs in this Court.


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