ORDER
1. Application by way of Judge’s summons under O. XIV, R. 8 of the Original Side Rules for stay of proceedings in C.S. No. 539 of 1989 pending disposal of the original Suit No. 9630 of 1986 on the file of the City Civil Court, Madras.
2. The applicant is the defendant in the present suit. In his affidavit he states that the present suit No. 539 of 1989 has been instituted against him for the recovery of sums due in respect of the Housing loan granted to him. Plaintiff has also sought to foreclose the Housing Loan under the pretext that the defendant has left the plaintiff Organisation. As per the plaint averments, cause of action for the above suit arises as this defendant has left the Organisation. Whereas the defendant has not left the Organisation. He is a permanent employee of the plaintiff-Corporation since 1972. He has filed O. S. No. 9630 of 1986 on the file of the City Civil Court, Madras challenging notice of termination dated 1-10-1986 issued to him. The matter in issue in that suit is also directly and substantially in issue in the present action. Hence this application to stay the proceedings under S. 10 of the Code of Civil Procedure.
3. The respondent plaintiff pleads in the counter that ihe present suit is one for recovery of Housing Loan which was availed by the defendant and since his service was terminated and he left the Organisation without clearing the outstanding amount. The applicant has filed O. S. No. 9630 of 1986 against the present respondent in the City Civil Court. That suit has been dismissed and the applicant has preferred an appeal in A. S. No. 138 of !99I on the file of the City Civil Court. Since the matter in issue in the present suit is not directly and substantially in issue in that suit, there is no scope for staying the suit under S. 10 of the Code of Civil Procedure.
4. In the reply affidavit the applicant/ defendant has assailed at length the averments in the counter affidavit.
5. The point for determination is whether the proceedings in C. S. No. 539 of 1989 on the file of this Court has to be stayed till the disposal of 0. S. No. 9630 of 1986 on the file of the City Civil Court, Madras.
6. The Point: — The present applicant R. Srinivasan was working as a Project Engineer (Chemical) in the respondent Company M/s. Southern Petrochemical Industries Corporation Limited.
A reading of the plaint in the earlier suit would indicate that he has instituted that action for declaration that the notice of termination issued by the respondent Company on 1-10-1986 is illegal and that the enquiry proceedings initiated by the Company against him are illegal, void and opposed to public policy and that the Enquiry Officer cannot proceed with the enquiry and for consequential permanent injunction restraining the respondent Company from proceeding with the enquiry or action as contemplated by them. Whereas the present suit C. S. No. 539 of 1989 is by the Company against R. Srinivasan for recovery of Rs. 1,54,688.84 with interest on the allegation that a sum of Rs. 1,08,000/- was advanced to the petitioner as Housing Loan to repay it within a period of 20 years or before retirement/ release of the petitioner from the services of the respondent. Company whichever is earlier and that so far the petitioner has paid only a sum of Rs. 14,060/- towards discharge of that loan. In the written statement the applicant herein does not dispute the borrowing. The averments therein are to the effect that in O.S. No. 9630 of 1986 he has challenged the notice of termination dated 1-10-1986 and the same was the subject matter of the suit in O, S. No. 9630 of 1986. Since that suit was dismissed he has preferred A.S. No. 138 of 1991 on the file of the City Civil Court, Madras and the subject matter of that appeal was also the notice of termination dated 1-10-1986. There is no dispute that proceedings in appeal are only a continuation of the suit instituted in the first Court. The written statement in C,S. No. 539 of I9S9 further alleges that the applicant continues to be a regular employee of the Company and as such is entitled to repay the loan in instalments with interest at 9% per annum. So the only issue that arises for consideration in C. S. No. 539 of 1989 is the liability of the present applicant to pay the suit amount in instalments within a period of 20 years and at 9% per annum instead of 18% per annum claimed in the plaint. Whereas the issue involved in the earlier suit relates to the validity of the termination notice. So it cannot be said that the issue directly and substantially in issue is the same in both suits.
7. The learned counsel for the applicant cited the decisions in Rana v. Union of India and C. Raman and Company v. Modern Motor Works and argued that the matter directly and substantially in issue in both the suits herein is the same and hence the later suit has to be stayed under S. 10, C.P.C. In the first decision a single Judge of the Delhi High Court has held that the words “matter in issue” in S. 10 of the Code of Civil Procedure mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit. They do not mean entire subject matter in issue in the two suits. In the second decision a single Judge of the Punjab and Haryana High Court found that on the facts therein the subsequent suit was filed as a counter blast to the previous suit and the matter in issue was the same in both the suits. Evidently these two decisions cannot help the applicant in any manner. In fact, as per the decision in in order to invoke S. 10, C.P.C. all disputed material questions must be directly and substantially in issue in both the suits. And we have already seen that all the direct and substantial disputes in the earlier suit do not arise for consideration in the later suit.
8. Under Section 10 of the Code of Civil Procedure, no Court shall 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 claim litigating under the sme title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed. This section does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the legislature in S. 10 that the identity required is a substantial identity. There must be an identity of the subject-matter, the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same. Where there are different and indpendent transactions between the parties, a suit qua one transaction cannot be stayed when a suit qua second transaction is filed.
9. The learned counsel for the respondent has rightly argued that the key words in S. 10 are : “the matter in issue is directly and substantially in issue” in the previously instituted suit. The words “directly and substantially in issue” are used in contradistinction to the words “incidentally or collaterally in issue”. That means that S. 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 and not merely one of the many issues which arise for determination in the two suits. This is the veiw taken by a single Judge of Ahamedabad High Court in S. E. Works, Bombay v. R. J. V. Mills, Ahamedabad . This Court has also laid down in Kuberan Nambudri v. Kuman Hair reported in 1925 (48) 1 LJ page 251 that the expression “matter in issue” in S. 10 of the Civil Procedure Code has reference to the entire subject in controversy between the parties and the mere fact that one of the issues in two suits is common is not sufficient to attract the operation of S. 10 of the Code of Civil Procedure. The question regarding the validity of the termination of the applicant from the service of the respondent Company is only incidental to the main dispute in the present suit. As we have already seen that the substantial question in dispute in this case relates to the rate of interest and the liability of the applicant herein to repay the loan amount in instalments within a period of 20 years.
10. One test of the applicability of S. 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. What is essential is that there must be ‘substantial identity between the matters in dispute and parties’ in the earlier and later suits. In Ram Narain v. Ram Swarup it was held that “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. Complete identity of the subject-matter is not necessary to attract the application of S. 10 and if a matter directly and substantially in issue in a previously instituted suit is also directly and substantially in issue in a later suit, then under S. 10 the later suit shall be stayed. But any matter common to the two suits will not attract the provisions of S. 10. The matter must be of substance so that its decision in one suit shall affect materially the decision of the other suit. If it is satisfactorily demonstrated that the second suit is parallel to the first suit, then the best course for everybody concerned would be to put a stay upon or arrest altogether the second suit at the earliest possible moment. The test whether a previously instituted suit and a subsequently instituted suit are parallel is that if the first was determined, the matter raised in the second suit would be res judicata by reason of the decision of the prior suit. If this test is applied it will be clear that the final decision reached in the earlier suit regarding the validity of termination of service would not operate as res judicata in the present suit to recover the housing loan.
11. The learned counsel for the applicant nest argued that even if the requirements of S. 10, C.P.C. are not satisfied, the Court can stay the proceedings in the later suit by invoking the inherent powers under S. 151, C.P.C. In support of his claim he relied on the decision in J. T. Republike v. Rungta and Sons . The Division Bench of the Calcutta High Court has only laid down that on the facts therein though no case for stay of the suit under S. 10 of the Code of Civil Procedure was made out, there should be a stay under S. 151 of the Code. A reading of the decision would indicate that the situation therein warranted such a stay. However as it has been pointed out in S. E. Works, Bombay v. R. J. V. Mills, Ahmedabad , from a reading of S. 151 of the Code it is obvious that in the absence of specific provision in the Code on the point, the Court has inherent power to make such orders as may be necessary for the ends of justice and to prevent the abuse of the process of the Court, In Subho Ram v. Dharmeswar Das (AIR 1987 Gau 73) it was held that where the requirements of S. 10, C.P.C, are not satisfied, recourse to S. 151, C.P.C. is permissible for staying a suit, provided the Court is satisfied that such a recourse is necessary for the ends of justice or to prevent abuse of the process of the Court, and it is not violative of any express and specific provision of the Code of Civil Procedure or any other law applicable to the case to be stayed. A Division Bench of the Bombay High Court has also held in J. H. Iron Mart v. Tills Iram that the inherent powers u/S. 151, C.P.C. are exercised when the Court is of the opinion that the later suit constitutes an abuse of the process of the Court. In this case by no stretch of imagination ii could be held that there is an abuse of the process of the Court on the part of the Company in instituting the later suit for recovery of the Housing Loan sanctioned to the applicant.
12. It is therefore seen that there is no scope for invoking either S. 10 or S. 151 of the Code of Civil Procedure and stay the proceedings in the later suit.
13. In the result, the application is dismissed and in the circumstances without costs.
14. Application dismissed.