Page No.# 1/6 vs Babu Boro
2025 Latest Caselaw 8298 Gua

Gauhati High Court

Page No.# 1/6 vs Babu Boro on 4 November, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                Page No.# 1/6

GAHC010215312021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : CRP(IO)/5/2022

         M/S GOEL COIR FOAM (INDIA) PRIVATE LIMITED AND 3 ORS
         HAVING ITS REGD. OFFICE AT RAMPUR GARDEN, BARREILY, UTTAR
         PRADESH, PIN-243001 AND IS REP. BY SRI RAKESH KUMAR GARD, S/O.
         SRI RAGHUVEER SARAN GARG, R/O. 203, GMC HOUSE NO.11, 2ND FLOOR,
         TONMOY RESIDENCY, NATUN PATH, HATIGAON, GUWAHATI, KAMRUP
         (M), ASSAM-781038.

         2: PANKAJ GOEL
          S/O. SRI DEVI PRASAD GOEL
          R/O. RAMPUR GARDEN
          BARREILY
          UTTAR PRADESH
          PIN-243001.

         3: PRAVEEN KUMAR SOLANKI

          S/O. GITAM SINGH SOLANKI
          R/O. 203
          GMC HOUSE NO.11
          2ND FLOOR
          TONMOY RESIDENCY
          NATUN PATH
          HATIGAON
          GUWAHATI
          KAMRUP (M)
          ASSAM-781038.

         4: RAKESH KUMAR GARG

          S/O. SRI RAGHUVEER SARAN GARG
          R/O. 203
          GMC HOUSE NO.11
          2ND FLOOR
          TONMOY RESIDENCY
                                                                                   Page No.# 2/6

             NATUN PATH
             HATIGAON
             GUWAHATI
             KAMRUP (M)
             ASSAM-781038

            VERSUS

            BABU BORO
            S/O. SRI BHUBAN BORO, R/O. WARD NO.2, HOLDING NO. GMB 80-A,
            GORESWAR, DIST. BAKSA, BTAD, ASSAM, PIN-781366.



Advocate for the Petitioner    : MR. J BHARALI, MS. T BEGUM,MR M HALOI,MR D DEKA,MR
N J KUMAR,MS. M DEY

Advocate for the Respondent : MR P KATAKI (P-2 TO 4), MR. H SARMAH,MR S DUTTA




                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                           ORDER

Date : 04.11.2025

Heard Mr. P. Kataki, learned counsel for the petitioner. Also heard Mr. S. Dutta, learned counsel for the respondents.

2. This is an application under article 227 of the Constitution of India challenging the order dated 30.10.2021 passed by the learned Civil Judge, Kokrajhar, in M.S. No. 05/2020.

3. The respondent filed the money suit being M S No. 05/2020 in the Court of Civil Judge, Kokrajhar against the present petitioners praying for recovery of Rs.5,79,71,500/- and an amount of Rs.57,97,150/- being the interest pendentelite over the principal amount @ 10% per annum. The respondent also claimed an amount of Rs.62,31,350/- being the cost incurred in performance of the agreement and an amount of Rs.1,41,05,000/- being the damages. The respondent also claimed future interest @24% per annum etc.

4. Thereafter, the respondents filed a title suit being T.S. No. 377/2020 against the present respondent in the Court of the learned Civil Judge No.1, Kamrup (M), Guwahati Page No.# 3/6

seeking some reliefs. In the suit the present petitioners prayed for a decree declaring that the present respondent had breached an agreement between them. The petitioner further prayed for decree declaring that the petitioner M/S. Goels Coir Foam (INDIA) PVT. LTD. is entitled to refund of a sum of Rs.65,00,000/-, which was allegedly paid in access to the present respondent. The petitioners also claimed for a decree declaring that the respondent is liable to return a sum of Rs.42,50,000/-, which was paid in advance.

5. Thereafter, the respondents filed an application under Section 10 of the Code of the Civil Procedure before the Court of the Civil Judge, Kokrajhar stating that the issues directly and substantially involved in M.S. 05/2020 is similar to those involved in T.S. No.377/2020, pending in the Court of the learned Civil Judge No.1, Kamrup (M), Guwahati. Therefore the petitioners prayed that the further proceeding of M.S. 05/2020 should be stayed.

6. The trial Court at Kokrajhar did not agree with the petitioners and refused their prayer under Section 10 of the CPC. Hence this Revision Petition has been filed.

7. I have considered the submissions made by the learned counsel for both the sides.

8. In order to buttress his point, Mr. Kataki has relied upon a Judgment of the Hon'ble Supreme Court that was delivered in Aspi Jal v. Khushroo Rustom Dadyburjor, (2013) 4 SCC

333. Paragraph Nos. 9 and 10 are quoted as under:

"9. Section 10 of the Code which is relevant for the purpose reads as follows:

"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 in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation.--The pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action."

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 Page No.# 4/6

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 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 & Neuro Sciences v. C. Parameshwara [(2005) 2 SCC 256] in which it has been held as follows: (SCC pp. 259-60, para 8) "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 Page No.# 5/6

'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."

9. Per contra, Mr. Dutta has relied upon another Judgment of the Supreme Court that was delivered in British Indian Corpn. Ltd. v. Rashtraco Freight Carriers , (1996) 4 SCC 748. Paragraph Nos. 3 and 5 of the said Judgment are quoted as under:

"3. The appellant had entrusted to the respondent 147 bales of raw wool worth Rs 51.48 lakhs as carriers for transportation to Cawnpore Woollen Mills. In spite of taking delivery thereof, the respondent had detained the goods in his custody, laid the suit OS No. 612 of 1994 in the civil court at Kanpur for a permanent injunction restraining the appellant from taking forcible possession of the goods with the allegation that a sum of Rs 13,48,817.13 was due from the appellant towards arrears of transportation charges. The interim injunction sought for was initially granted but later on vacated. Ultimately, in appeal, the High Court directed the appellant to give bank guarantee to the tune of the amount purported to be due as pleaded for in the suit. We are informed that the bank guarantee has accordingly been given. The appellant entrusted taking of delivery of the possession of the goods to the carriers-respondent who laid the suit on 1-7-1994 and interim mandatory injunction was sought for and was granted.

5. Section 10 of CPC envisages that 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. It is seen that the claim of the respondent in Suit No. 612 of 1994 is for the recovery of the alleged dues said to be payable by the appellant-Corporation while the suit of the appellant is for recovery of the goods lawfully entrusted to and unlawfully detained by the respondent. The causes of action are entirely different. There is no common issue directly or substantially in issue in both the suits. The High Court, therefore, committed gross error of law in staying the later suit."

10. I have considered the submissions made by the learned counsel for both the sides.

Page No.# 6/6

11. At this stage, I shall rely upon a Judgment of this Court that was delivered in Sri. Bhupal Chandra Das Vs. Sri. Durga Barman and Ors reported in 1990 (1) GLR 400. In paragraph 5 of this Judgment it was held as under:

" One of the essential conditions to attract Section 10 of the CPC is that the matter in issue in a suit is also 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 judicata in the subsequent suit. Another suit is whether in the earlier suit, the Court can also grant the relief sought for in subsequent suit. There is still another test which, in ray 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 'Yes', Section 10 would apply and the Court should stay the subsequent suit. Otherwise not."

12. On a plain readings of the plaints of both the cases, it is apparent that the matters directly and substantially an issue in both the cases are different. Court cannot grant relief to the parties in the second suit, which were prayed for in the first suit. The decision of the previous suit could not attract the decision in the subsequent suit. Therefore, Section 10 of the CPC is not applicable in the present case. The learned trial court has correctly held that Section 10 of the CPC is not applicable in the present case.

13. Under the given circumstances, this court is of the opinion that the present revision petition is devoid of merit and stands dismissed accordingly.

JUDGE

Comparing Assistant