[Cites 3, Cited by 0]
Gauhati High Court
Page No.# 1/3 vs Raifuddin Ahmed @ Rick Baba on 2 December, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/3
GAHC010271102017
2025:GAU-AS:16454
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/55/2017
SYED SAHIDUL ISLAM and ANR.
S/O- LATE KUTUBUDDIN AHMED, R/O- UZANBAZAR, P.S- LATASIL,
GUWAHATI- 1, KAMRUPM, ASSAM
2: MUSSTT. MAHMUDA SAHJAHANA
W/O- SYED SAHIDUL ISLAM
R/O- UZAN BAZAR
P.S- LATASIL
GUWAHATI-1
DIST- KAMRUPM
ASSA
VERSUS
RAIFUDDIN AHMED @ RICK BABA
S/O- MD. MOHIN AHMED, R/O- HOUSE NO.1, FC ROAD, UZANBAZAR, P.S-
LATASIL, GUWAHATI-1, DIST- KAMRUP, ASSAM
Advocate for the Petitioner : MR.S J SARMA, MR.N HAZARIKA,MR.S N ADHYAPAK
Advocate for the Respondent : MR.A Z AHMED, MS. M NATH,MR. A IKBAL,MR.M ALAM
PRESENT
THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
For the Petitioners : Mr. S.J. Sarma,
Advocate.
For the Respondent : Mr. A. Ikbal,
Advocate.
Page No.# 2/3
Date of Hearing : 12.08.2025.
Date of Judgment : 02.12.2025.
JUDGMENT AND ORDER (CAV)
Heard Mr. S.J. Sarma, learned counsel appearing for the petitioners. Also heard Mr. A. Ikbal,
learned senior counsel representing the sole respondent.
2. This is an application under Article 227 of the Constitution of India challenging the order dated
03.03.2017 passed by the learned Civil Judge No.3, Kamrup (M) at Guwahati in T.S. No.114/2014.
3. The present petitioners filed T.S. 244/2006 in the court of the Munsiff No.3 at Guwahati praying
for a declaration that they are lawful occupiers in respect of the suit property and prayed for permanent
injunction restraining the present respondent (the defendant in the said suit) from forcible dispossession
from the suit property.
4. The T.S. 244/2006 was decreed on contest and the present respondent (the defendant in the said
suit) filed an appeal being T.A. 123/2014.
5. Thereafter, the present respondent (the defendant in T.S. 244/2006) filed another suit being T.S.
114/2014 against the present petitioners praying for a declaration that the present petitioners are not
lawful tenants under him and are trespassers in respect of the said Schedule-B premises. The present
respondent, being the plaintiff in the new suit, prayed for a decree declaring that the deed of lease dated
05.01.2004 was a fraudulent and fabricated document. The respondent prayed for recovery of
possession of Schedule-B premise.
6. After filing of T.S. 114/2014, the present petitioners filed an application under Section 10 of the
Code of Civil Procedure praying for stay of the suit on the ground that the matter directly and
substantially an issue in the present suit i.e. T.S. 114/2014 is same and between the same parties as of
T.S. 244/2006.
7. The learned trial court has held that the matter in issue in T.S. 114/2014, is not directly and
substantially an issue in the previous suit and therefore, rejected the prayer under Section 10 of the
Civil Procedure Code.
8. I have considered the submissions made by the learned counsel of both sides.
9. In Shri Bhupal Ch. Das v. Shri Durga Barman & Ors., reported in 1990 1 GLR 400, this Court
has held as under:
"Section 10 of the CPC provides:
"10. Stay of suit.- 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 same title where such suit is pending
in the same or any other court in India having jurisdiction to grant the relief claimed, or any court
beyond the limits of India established or continued by the Central Government and having like
jurisdiction, or before the Supreme court".
One of the essential conditions to attract Section 10 of the CPC is that the matter in issue in a suit is also
Page No.# 3/3
directly and substantially in issue in a previously instituted suit between the same parties. The "matter in
issue" means the subject in controversy between the parties. There must be substantial identity of matter
in issue in the two suits. Different tests have been evolved by the courts to decide applicability of
Section 10 One of such tests, which is often applied, is whether final decision in the previous suit would
operate as res judicate in the subsequent suit. Another test is whether in the earlier suit, the Court can
also grant the relief sought tor in subsequent suit. There is still another test which, in my opinion, is
easier to apply and more appropriate. This test is whether the decision in the previous suit would affect
the decision in the subsequent suit.. If the answer is `Yest, Section 10 would apply and the Court should
stay the subsequent suit. Otherwise not."
10. In T.S. 244/2006, the present petitioners being plaintiffs of that suit, prayed for a declaration that
they are lawful occupiers of Schedule-B property and prayed for a permanent injunction restraining the
present respondent, the defendant in the suit from forcibly dispossessing them from the suit premise.
11. In T.S. 114/2014, the present respondent being the plaintiff of the suit, prayed for recovery of the
aforementioned Schedule-B property i.e. the suit premise after evicting the present petitioners
(defendants in T.S. 114/2014).
12. Therefore, the matter directly and substantially an issue in T.S. 244/2006 is not the same in T.S.
114/2014. This Court has already held that he matter in issue means the subject in controversy between
the parties. For application of Section 10 of the Civil Procedure Code, one test is that whether the final
decision of the previous suit would operate as res judicata in the subsequent suit? The other test is
whether in the earlier suit, the court can also grant the relief sought for in the subsequent suit? The third
test is whether the decision in the previous would affect the decision in the subsequent suit? This Court
is of the opinion that the decree passed in T.S. 244/2006 would not affect the possible decree that might
be passed in T.S. 114/2014 because the issues in both the suits are different. The learned trial court has
correctly dismissed the application under Section 10 of the Code of Civil Procedure.
13. Under the aforesaid premised reason, this Court is of the opinion that the present revision petition
is devoid of any merit and therefore stands dismissed accordingly.
JUDGE
Comparing Assistant
