2026:HHC:30642 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CR No.82 of 2025 Decided on: 22.07.2026 ____________________________________________________________ Kamal Jeet and others ...Petitioners Versus Jeevan Malik and another ...Respondents _____________________________________________________________ Coram Hon'ble Mr. Justice Jiya Lal Bhardwaj, Judge Whether approved for reporting? 1Yes For the petitioners: Mr. Sudhir Thakur, Senior Advocate, with Mr. Karun Negi, Advocate. For the respondents: Mr. Vipin Pandit and Mr. Parikshit Sharma, Advocates. Jiya Lal Bhardwaj, Judge (Oral) The petitioners-defendants have assailed the order dated 12.07.2024, passed in Civil Suit No.115/1 of 2015, titled, Smt. Jeevan Malik and another vs. Smt. Nirmala Tanwer and others, whereby the issue framed vide order dated 19.09.2015 as to whether the suit is barred under Section 10 of the Code of Civil Procedure, has been answered in negative. 2. The challenge laid by the petitioners-defendants is mainly on the ground that they have already filed a suit 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2026:HHC:30642 for specific performance of contract, permanent prohibitory injunction and in alternative for adverse possession of the land comprised in khasra No. 67, which is depicted by new khasra Nos. 91, 92 and 93, kita 3 measuring 1,887 sq. meters and khasra No. 68, which is depicted by new khasra Nos. 94, 95, kita 2, measuring 1,807 sq. meters, situated at Mauza Dehun, Pargana Bharoli Khurd, Tehsil and District Solan, H.P., besides other reliefs, which is pending adjudication before the Court of learned Civil Judge (Senior Division), Solan, District Solan, H.P. It has further been averred that once the petitioners-defendants had already instituted the suit, the subsequent suit instituted by the respondents-plaintiffs for recovery of arrears of rent, mesne profit and possession of the premises ought to have been stayed in view of the provisions contained in Section 10 of the Code of Civil Procedure (in short ‘CPC’). It has also been averred in the petition that the learned trial Court has wrongly held that the matter in the subsequent suit is not directly and substantially in issue in the previous instituted suit by the petitioners-defendants, which findings are wrong and incorrect. 3. Learned counsel representing the respondents- 3 2026:HHC:30642 plaintiffs has supported the order passed by the learned trial Court, whereby the issue has been decided against the petitioners-defendants, holding that the subsequent suit is not barred under Section 10 of the CPC. 4. I have heard the learned counsel for the parties and also perused the record carefully. 5. Learned senior counsel representing the petitioners-defendants has vehemently argued that once the previous suit instituted by the petitioners-defendants was with respect to the specific performance of contract, permanent prohibitory injunction and in the alternative for adverse possession of the same land, the subsequent suit instituted by the respondents-plaintiffs for recovery of arrears of rent, mesne profit and possession of the premises in respect of the same suit land is directly and substantially the same with respect to the same parties and therefore, the learned trial Court has wrongly answered the issue under Section 10 of CPC holding that subsequent suit is not the same. 6. Before adverting to the submissions made by learned senior counsel for the petitioners-defendants, it would be relevant to quote the provision of Section 10 of 4 2026:HHC:30642 the CPC, which reads as under:- “A perusal of the bare reading of the provisions of the section clearly reveals that the Court shall not proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claiming litigating under the same title where such suit is pending.” 7. If the earlier suit instituted by the petitioners- defendants is perused, a copy whereof has been placed on record as Annexure P-3, the suit is for specific performance of contract, permanent prohibitory injunction and alternatively for adverse possession. The subsequent suit instituted by the respondents-plaintiffs is with respect to recovery of arrears of rent, mesne profit and possession of the premises. In the subsequent suit, the respondents- plaintiffs have claimed the recovery of arrears of rent on the ground that they are the owners of the suit property, which fact is not even denied by the petitioners-defendants for the reason that they have instituted the suit for specific performance of contract on the basis of an agreement, which has been executed by the predecessor-in-interest of the respondents-plaintiffs, who was their father, on 27.10.1979 and thus, the claim raised in the subsequent 5 2026:HHC:30642 suit is neither directly nor substantially in issue in the previous suit instituted by the petitioners-defendants against the respondents-plaintiffs. 8. Learned counsel for the petitioners-defendants has vehemently argued that since the petitioners- defendants have already instituted a suit and the subject matter of the said suit is similar to that of the subject matter in the subsequent suit instituted by the respondents- plaintiffs, the learned trial Court has erred in deciding the issue. He placed reliance upon the judgment of the Hon'ble Supreme Court in Aspi Jal and another vs. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 and referred to paras 9 to 11 of the judgment which read as under: 9. …….….. From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations 6 2026:HHC:30642 in respect of same cause of action, same subject matter and the same relief. This is to pin down the Plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. 10. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health and Neuro Sciences v. C. Parameshwara, MANI/SC/1063/2004(2005) : 2 SCC 256 in which it has been held as follows: “ 8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical.” 7 2026:HHC:30642 11. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether “the matter in issue is also directly and substantially in issue in previously instituted suits”. The key words in Section 10 are “the matter in issue is directly and substantially in issue in the previously instituted suit”. The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.” 9. The Hon'ble Supreme Court in the aforementioned judgment has held that where the whole of the subject matter in both the suits is identical and further, if the subject matter of the subsequent civil suit is based on the same cause of action as the earlier instituted suit and same relief is prayed, the subsequent suit has to be stayed for the reason that the purpose of engrafting Section 10 of the CPC is to avoid the possibility of contradictory verdicts by two courts in respect of the same relief. However, in the present case, as already noted above, the earlier suit instituted by the petitioners-defendants is for specific performance of the suit land, whereas, the subsequent suit 8 2026:HHC:30642 instituted by the respondents-plaintiffs is for recovery of arrears of rent, mesne profit and possession of the premises and therefore, the judgment cited by learned senior counsel is not attracted to the facts of the present case, since the cause of action in both the civil suits is different and the reliefs are not same and similar. 10. Learned counsel representing the respondents- plaintiffs has placed reliance upon the judgment of the High Court of Patna in N.P. Tripathi vs. Dayamanti Devi, AIR 1988 Patna 123 and contended that since the prayer in the subsequent suit instituted by the respondents-plaintiffs is different from the prayer made in the earlier suit instituted by the petitioners-defendants, the provisions of Section 10 CPC are not attracted. In this judgment, the High Court had held that merely by instituting a suit for the specific performance of contract; or for that matter, by an agreement of sale, it cannot be held that the subsequent suit instituted for eviction is not maintainable. In the present case, the petitioners-defendants have based their claim in the earlier suit on the basis of the agreement which has been executed by the predecessor-in-interest of the respondents-plaintiffs on 27.10.1979 and since the 9 2026:HHC:30642 petitioners-defendants are not the owners of the suit property till the time the suit filed by them for specific performance is decreed, the respondents-plaintiffs, being the owner of the suit property are admittedly entitled to institute a suit for recovery of arrears of rent, mesne profit and possession and therefore, the subsequent suit instituted by them cannot be said to be hit by the provisions of Section 10 of the CPC. 11. Learned counsel representing the respondents- plaintiffs has also placed reliance upon the judgment of the Hon’ble Apex Court in Civil Appeal No. _______ of 2024 (arising out of SLP Civil No. 7617 of 2019), Usha & Anr. vs. Shahjad Bi @ Sejad & Ors. In this judgment, it has been held that the provisions of Section 10 of CPC shall apply only in those cases where the whole of the subject matter in both the suits is identical. As already discussed above, the earlier suit instituted by the petitioners-defendants is for specific performance of contract which has been allegedly executed on 27.10.1979 and the subsequent suit instituted by the respondents-plaintiffs is for recovery of arrears of rent, mesne profit etc. and thus, it cannot be said that the subject matter in the subsequent suit is directly and 10 2026:HHC:30642 substantially in issue and further the cause of action is similar and identical in the subsequent suit instituted by the respondents-defendants. 12. The learned trial Court, after considering the import of Section 10 of CPC, has rightly come to the conclusion that the matter involved in both the suits is not directly and substantially in issue and thus, no error has been committed by the learned trial Court while answering the issue in negative and this Court while exercising the revisional jurisdiction is not interfering with the said order passed by the learned trial Court, especially when there is neither any perversity nor illegality having been committed by the learned trial Court. 13. Resultantly, I do not find any merit in the present petition and the same is dismissed. However, there shall be no order as to costs. Pending applications, if any, also stand disposed of. 22 nd July, 2026 ( Jiya Lal Bhardwaj ) (Anurag) Judge