Calcutta High Court
Company Limited vs Himadri Specialty Chemical on 30 March, 2026
Author: Aniruddha Roy
Bench: Aniruddha Roy
In the High Court at Calcutta
Commercial Division
Original Side
Judgment (2)
PRESENT :
THE HON'BLE JUSTICE ANIRUDDHA ROY
IA NO. GA/1/2022
[OLD NO. CS/196/2022]
In CS-COM/419/2024
NATIONAL INSURANCE
COMPANY LIMITED
Vs
HIMADRI SPECIALTY CHEMICAL
LTD
IA NO. GA-COM/5/2025
[OLD NO. CS/196/2022]
In CS-COM/419/2024
NATIONAL INSURANCE
COMPANY LIMITED
Vs
HIMADRI SPECIALTY CHEMICAL
LTD
For the plaintiff : Mr. Mr. Shiv Shankar Banerjee, Adv.
Ms. Dolon Dasgupta, Adv.
Ms. Arijita Ghosh, Adv.
Ms. Sretapa Sinha, Adv.
Mr. Siddhartha Chamaria, Adv.
Mr. Partho Proteem Das, Adv.
For the defendant : Mr. Anirban Ray, Sr. Adv.
Mr. Shayak Mitra, Adv.
Mr. Amit Kumar Nag, Adv.
Mr. Partha Banerjee, Adv.
Heard on : March 30, 2026
Judgment on : March 30, 2026
[In Court]
2
ANIRUDDHA ROY, J :
FACTS:
1. This is an application filed by the defendant in the instant
suit under Section 10 of the Code of Civil Procedure, 1908
(hereinafter “CPC“), inter alia, praying for following reliefs :-
“(a) An order be passed staying the trial of the instant
suit, being CS(COM) No. 419/2024 (Old No. C.S.
196 of 2022) (National Insurance Company of India
– Vs.- Himadri Specialty Chemical Limited);
(b) Stay of all further proceedings in the instant suit
being CS(COM) No. 419/2024 (Old No. C.S. 196 of
2022) (National Insurance Company of India – Vs.-
Himadri Specialty Chemical Limited), till disposal of
this application;
(c) Ad-interim orders in terms of prayers made herein
above;
(d) Appropriate orders may be passed as to the costs
and/or incidentals to this application;
(e) Such further order or orders by passed and/or
direction or directions be given as to this Hon’ble
Court may deem fit and proper.
2. The plaintiff in the instant suit is the landlord (hereinafter,
“landlord”) and the defendant is the tenant/lessee
(hereinafter, “tenant/lessee”) in respect of premises No. 8,
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
3
India Exchange Place, P.S. Hare Street, Kolkata-700001
(hereinafter, “said premises”) as morefully and particularly
described in the plaint.
3. The plaint case is that the plaintiff on April 4, 2012 executed
a lease deed in respect of the second floor of the premises in
favour of the defendant/lessee for a period of 10 years with
effect from August 16, 2010 to August 15, 2020, on the
terms mentioned in the lease deed. The lease deed is available
as Annexure A at page 17 to the plaint.
4. During currency of the lease, on March 7, 2017 Annexure C
at page 25 to the Section 10 application, landlord had served
a notice upon the lessee claiming a sum more than
Rs.2,00,00,000/- on account of recoverable proportionate
Kolkata Municipal Corporation taxes together with interest.
Landlord also informed that the leasehold right of the lessee
would be terminated with the end the month June, 2017 due
to deliberate breach of the lease terms on the part of the
lessee and as such, the lessee was required to quit and
handover peaceful, vacant khas possession of the premises to
the landlord on July 1, 2017, unless, the said municipal
taxes are paid.
5. The lessee being the defendant herein on or about June 21,
2017 filed a suit being Title Suit No. 819 of 2017
(hereinafter, “the first suit filed by the lessee”) before the
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
4
learned City Civil Court at Calcutta praying, inter alia, as
follows:
“(a) Declaration that the letter dated 7th March, 2017
alleging termination of tenancy of the plaintiff on the
ground of nonpayment of the alleged municipal tax,
pending final adjudication of the same by Kolkata
Municipal Corporation as sought for by the
defendant itself is absolutely premature and not in
conformity with law and is void, premature, illegal,
invalid, contrary to the terms of the lease deed and
not binding upon the plaintiff.
(b) Permanent injunction do issue restraining the
defendant, its men and/or agents, and/or servants
from giving any effect or further effect to the said
purported letter dated 7th March, 2017 issued by
the defendant’s advocate on the plaintiff.
(c) Specific performance of the Agreement dated 4th of
April, 2012 as pleaded in paragraphs 6
hereinabove;
(d) Receiver;
(e) Costs;
(f) Injunction
(g) Such other and further order and/or orders as Your
Lordships may deem fit and proper.”
The plaint is available at page 28 to Section 10 application.
The said Title Suit is still pending.
6. On June 12, 2026, landlord issued a notice upon lessee,
Annexure C at page 48 to the plaint, whereunder the
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
5
landlord informed that it was not inclined to renew the lease
term with the lessee and requested lessee to vacate the
premises on or before August 15, 2020 in terms of the lease
agreement. The landlord also demanded the pending dues
with interest up-to-date.
7. Challenging the notice dated June 12, 2020, the lessee had
filed the second suit being Title Suit No. 532 of 2020
(hereinafter, “the second suit filed by the lessee”) before the
learned City Civil Court at Calcutta, inter alia, praying for
following reliefs:
“a) A decree for declaration that the intention and
decision of the defendant expressed in the letter
dated 12th June 2020 is malafide, illegal and not
binding upon the plaintiff;
b) A decree for declaration that the Guideline of Govt.
of India dated 30th May 2002 with regard to
restriction on arbitrary use of powers of the
defendant to evict genuine tenant like the plaintiff is
binding upon the defendant;
c) A decree for perpetual injunction restraining the
defendant and/or their men, agents and servants
from giving any effect or further effect to the letter of
12th June 2020;
d) A decree for perpetual injunction restraining the
defendant and/or their men, agents and servants
from disturbing the peaceful possession of the
plaintiff in respect of the suit property;
e) Injunction;
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
6
f) Attachment;
g) Receiver;
h) Costs;
i) Such further or other orders.”
The plaint is available at page 49, Annexure D to the instant
plaint.
8. The landlord/plaintiff, thereafter, had served another notice
dated August 24, 2020, Annexure E at page 66 to the
instant plaint. In paragraph 9 to the instant plaint, the plaint
case is that on or about August 24, 2020 the landlord made
further up-to-date demand on August 24, 2020. In the said
letter, it has been acknowledged that a sum of
Rs.2,80,00,000/- had been paid by the lessee which was
adjusted against a total claim of Rs.14,94,00,000/-. The said
letter also speaks that after the agreed period of lease, an
occupational charge at the rate of Rs.1,00,000/- per day was
claimed by the landlord with effect from August 16, 2020.
9. Landlord/plaintiff then on or about August 1, 2022 has filed
the instant suit with the following prayers:-
“a) Leave under Section 12A of Commercial Court’s
Act, 2015;
b) A decree for recovery of khas possession of 12,303
square feet + 345 square feet aggregating to
12,648 square feet at the 2nd floor of the Premises
No. 8, India Exchange Place, P.S. Hare Street,
Kolkata – 700001 within the limit of the KolkataIA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
7
Municipal Corporation Ward No. 41, Kolkata – 700
001;
c) A decree for a sum of Rs.17,84,34,573.40 towards
arrear charges as indicated in para 11 above:
d) A decree on the mesne profit in respect of suit
premises from filing of suit till recovery of the
possession;
e) Receiver;
f) Injunction;
g) Commission;
h) Any other relief or reliefs as Your Lordships may
think fit and proper.”
10. In the above circumstances, the defendant in the instant suit
being the lessee has filed the instant application praying for
stay of the instant suit.
SUBMISSIONS:
11. Mr. Shayak Mitra, learned Advocate led by Mr. Anirban Ray,
learned Senior Advocate appearing for the defendant/lessee
referring to all three plaints, submits that the subject matter
of all three plaints is the same premises which had been
leased out to the lessee by the landlord/plaintiff under the
admitted lease document and the landlord now claims khas
possession of the leased out premises from the lessee on the
basis of the notice to quit dated June 12, 2020 which is
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
8
under challenge in the said second suit filed by the lessee
pending before the learned City Civil Court.
12. Referring to the prayers from the instant plaint, filed by the
landlord and the averments made in the plaint, learned
Counsel for the applicant/ tenant submits that the basis of
eviction claimed by the plaintiff/landlord, as pleaded in
paragraph 15 of the instant plaint is the said notices i.e. the
notices dated March 7, 2017, June 12, 2020 and last notice
dated August 24, 2020.
13. Referring to the said notice dated August 24, 2020, Mr.
Anirban Ray, learned Senior Advocate submits that the said
notice does not speak for claiming possession from the lessee
and the same only speaks on fiscal demand by the landlord
on account of alleged unpaid rent including maintenance
charges, KMC taxes and other allied charges allegedly payable
by the lessee under the lease terms.
14. Referring to the said notice, Mr. Anirban Ray, learned Senior
Advocate submits that the said notice specifically speaks that
the landlord had already issued notice upon lessee dated
June 12, 2020 to vacate the premises on or before August
15, 2020 but the lessee did not vacate it.
15. Mr. Anirban Ray, learned Senior Advocate then submits that
since the said notice to vacate dated June 12, 2020 is under
challenge in the said second City Civil Court suit filed by the
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
9
lessee, unless a conclusive adjudication comes in the said
second City Civil Court suit, the instant suit should be stayed.
16. He submits that in the event, the said second City Civil suit
succeeds and the said notice to quit dated June 12, 2020 is
declared to be invalid and illegal, then the said decision would
be res judicata on the issue and the basis of the instant suit
being the said notice, nothing will be surviving in the instant
suit in favour of the landlord claiming eviction of the lessee.
17. Mr. Anirban Ray, learned Senior Advocate appearing for the
lessee submits that the fundamental test to attract Section 10
of CPC 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 expression used in Section 10 of CPC is the matter in
issue is directly or substantially in issue in the previous
instituted suit is to be looked into. If it is found that the matter
in issue in the previously instituted City Civil Suit and/or the
suits, are directly or substantially in issue in the instant suit,
filed by the landlord before this Court, then the instant suit
being a later one should be stayed.
18. In support, he has relied upon the following decisions:
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
10
i) In the matter of: National Institute of Mental
Health & Neuro Sciences Vs. C.Parameshwara
reported at (2005) 2 Supreme Court Cases 256;
ii) In the matter of: Aspi Jal and Another Vs. Khushroo
Rustom Dadyburjor reported at (2013) 4 Supreme
Court Cases 333 and
iii) In the matter of: Sajjadanashin Sayad Md. B.E. ED.
reported at (2000) 3 Supreme Court Cases 350.
19. On a comparative study of three plaints, Mr. Anirban Ray,
learned Senior Advocate submits that the sole issue in the
instant suit is the eviction of the lessee claimed by the
landlord with the consequential reliefs on the basis of the
notices dated June 12, 2020 and March 7, 2017 which are
already in issue before the two City Civil Court suits filed by
the lessee.
20. Landlord has not claimed recovery of possession in the notice
dated August 24, 2020. Therefore, the instant suit should be
stayed by virtue of operation of Section 10 of CPC.
21. Mr. Shiv Shankar Banerjee, learned Advocate appearing for
the landlord/plaintiff in the instant suit and the defendant in
the City Civil Court suits has placed all three plaints in detail.
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
11
22. Referring to the reliefs claimed in the first City Civil Court suit
of 2017 filed by the lessee he submits that reliefs were
claimed by the lessee in the said first suit with regard to the
notice dated March 7, 2017 and specific performance of the
lease agreement dated April 4, 2012. He submits that the
said notice dated June 12, 2020 was not a subject matter in
that suit, as the said notice was even not born that time.
23. He then submits that various reliefs have been claimed in the
second City Civil Court suit which, inter alia, includes reliefs
with regard to the said notice dated June 12, 2020 as also for
a declaration on the guidelines of government of India dated
May 30, 2002 with regard to restriction on arbitrary use of
powers of the landlord to evict genuine tenant like the lessee
herein, is binding upon the landlord. Substantial reliefs had
been claimed therein. Mr. Banerjee submits that in the
instant suit, the landlord has claimed simplicitor khas
possession along with consequential mesne profit and other
monetary reliefs against the lessee on account of the alleged
unauthorised occupation of the lessee at the suit premises. He
submits that after expiry of the lease, the landlord issued the
said notice dated August 24, 2020 and then filed the instant
suit. The notice dated June 12, 2020 which is the subject
matter in issue in the second City Civil Court suit was a
notice for the period when the lease had not expired.
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
12
Therefore, the instant suit is based on the notice dated
August, 24, 2020, which is a notice issued after the lease
had expired. The said notice would show that the landlord has
claimed the amount from the lessee for the entire period of
lease, which remained unpaid and/or payable by the lessee.
Therefore, the issue involved in the instant suit is neither in
issue or substantially in issue with either of the pending City
Civil Court suit.
24. Mr. Shiv Shankar Banerjee, learned Advocate appearing for
the landlord then refers to the provisions from Section 10 of
CPC and submits that if any particular issue amongst all
others are same or similar or in issue or substantially in issue
with that of a previous suit between the same parties with
regard to the same subject matter leaving aside all other
issues in the subsequent suit, Section 10 does not permit
the subsequent suit to be stayed.
25. Referring to section 10 of the Code, Mr. Banerjee further
submits that subject matter in issue in the subsequent suit,
the instant suit herein, must be directly and substantially in
issue in the previous suit/ suits. In that way the subject
matter of two suits must be identical, merely because one of
the questions in issue is the same as in the previous suits,
would not make the subject matter identical with that of the
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
13
subsequent suit. In support, he has relied upon the following
decisions:
(i) In the matter of: Adhis Chandra Sinha versus
Hindusthan Gas & Industries Ltd. and another
reported at AIR 1985 Cal 154 and,
(ii) In the matter of: Bepin Behary Mozumdar versus
Jogendra Chandra Ghosh reported at AIR 1917 Cal
248.
26. In the light of the above submissions, Mr. Shiv Shankar
Banerjee submits that on meaningful reading of the instant
plaint and the reliefs claimed thereunder, it would be evident
that both the prayers (b) and (c) to the plaint are mutually
exclusive and are independent in nature and even if the
decision in the second City Civil Court suit becomes res
judicata on the issue of notice to quit dated June 12, 2020,
then the same may have a bearing on prayer (b) to the instant
suit but prayer (c) may run independently for adjudication.
Therefore, there is no merit in the said Section 10 application
and the same should fail.
DECISION:
27. After hearing rival contentions of the parties and on perusal of
the materials on record, at the outset, this Court thinks it fit
to quote the provisions of Section 10 of CPC for ready
reference:
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
14
“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.”
28. The admitted facts are that the plaintiff herein is the landlord
in respect of the suit premises where the defendant is lessee
in respect of the second floor thereof. The lease deed dated
April 4, 2012 is also admitted by and between the parties.
The tenure of lease is also admitted for ten years as would be
evident from the said document.
29. The three notices are also admitted namely notice dated
March 7, 2017 which is under challenge in the first City Civil
Court suit filed by the lessee, the second one is dated June
12, 2020 under which the landlord had asked the lessee to
give possession back of the demised premises, which is under
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
15
challenge in the second City Civil Court suit and the third
notice is dated August 24, 2020 under which the landlord
has alleged monetary claim against the lessee.
30. The notice dated June 7, 2017 issued by the landlord
principally claiming the alleged KMC taxes and charges and
other monetary claims with the intention of the landlord that
in default, the lessee would have vacated the premises. The
said notice is under challenge in the first City Civil Court suit.
31. On a close scrutiny of the said notice dated June 12, 2020,
this Court finds that the said notice was a notice to quit,
served upon the lessee by the landlord, which is under
challenge in the said second City Civil Court suit.
32. On a close scrutiny of the notice dated August 24, 2020, this
Court finds that it refers to the previous notice to quit dated
June 12, 2020 and the rest is the money claimed against the
lessee by the landlord.
33. On a comparative reading of the three plaints and their reliefs,
it appears to this Court that the notice to quit dated June 12,
2020 is the only notice served upon the lessee by the landlord
asking possession of the demised premises and the same is
under challenge in the second City Civil Court suit.
34. On a meaningful reading of paragraphs 10 and 15 of the
instant plaint, it appears to this Court that the land lord has
claimed occupational charges against the lessee for the period
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
16
of August 16, 2020 to May 31, 2022 and paragraph 15 of
the plaint shows that the plaintiff claims recovery of
possession of the premises in terms of its notices. The three
notices which have already been referred to above are
admittedly the notices issued by the landlord upon the lessee
and no further notice was there. On close scrutiny of the said
notices, this Court is of the considered view that only notice
dated June 12, 2020, which is under challenge in the second
City Civil Court suit, is the notice to quit.
35. Now comes the reliefs claimed by the landlord in the instant
plaint. Prayer (b) is for recovery of possession, which is to be
proceeded with pursuant to the said notice to quit dated
June 12, 2020, which is under challenge in the said second
City Civil Court suit. Prayer (d) to the plaint depends on the
fate of prayer (b) to the plaint. Therefore, the second City Civil
Court suit being prior one if a conclusive decision comes in
favour of the lessee in the said second City Civil Court suit
declaring the notice to quit dated June 12 2020 to be illegal
and void, then automatically the same would operate as res
judicata on the issue claiming recovery of possession in
prayers (b) and then (d) to the instant suit.
36. Prayer (c) to the instant suit would largely depend if the lessee
is declared to be an unauthorised occupant at the premises.
In the event, the first City Civil Court suit and the second City
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
17
Civil Court suit succeed, then the scenario would be different
and the lessee may not be treated as an unauthorised
occupant.
37. If the instant suit is stayed for the time being till the first two
City Civil Court suits are conclusively decided, the landlord
will not suffer any prejudice. In the event the suits at City
Civil Court fail, automatically the instant suit would revive
and the trial will proceed on merit of the instant suit. In the
event, this suit is allowed to be proceeded and the two City
Civil Court suits are also proceeded simultaneously, then
there may be conflict of judicial pronouncements and conflict
of judicial discipline, which is not warranted in the
adjudicatory process.
38. In the matter of: National Institute of mental Health and
Neuro Sciences (supra), the Hon’ble Supreme Court had
observed as under:
“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
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
18
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
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
19
thereby, that the whole of the subject-matter in
both the proceedings is identical.”
39. In the matter of: ASPI JAL AND ANOTHER (supra), the
Hon’ble Supreme Court had observed as under:
“12. As observed earlier, for application of Section
10 of the Code, the matter in issue in both the
suits have to be directly and substantially in
issue in the previous suit but the question is
what “the matter in issue” exactly means? As in
the present case, many of the matters in issue
are common, including the issue as to whether
the plaintiffs are entitled to recovery of
possession of the suit premises, but for
application of Section 10 of the Code, the entire
subject-matter of the two suits must be the
same. This provision will not apply where a few
of the matters in issue are common and will
apply only when the entire subject-matter in
controversy is same. In other words, the matter
in issue is not equivalent to any of the
questions in issue. As stated earlier, the
eviction is the third suit has been sought on the
ground of non-user for six months prior to the
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
20
institution of that suit. It has also been sought
in the earlier two suits on the same ground of
non-user but for a different period. Though the
ground of eviction in the two suits was similar,
the same were based on different causes. The
plaintiffs may or may not be able to establish
the ground of non-user in the earlier two suits,
but if they establish the ground of non-user for
a period of six months prior to the institution of
the third suit that may entitle them the decree
for eviction. Therefore, in our opinion, the
provisions of Section 10 of the Code is not
attracted in the facts and circumstances of the
case.”
40. In the matter of SAJJADANASHIN SAYED MD. B.E. EDR.(D)
(supra), the Hon’ble Supreme Court had observed as under :
“18. In India, Mulla has referred to similar tests
(Mulla, 15th Edn.. P. 104). The learned author
says: a matter in respect of which relief is
claimed in an earlier suit can be said to be
generally a matter “directly and substantially”
in issue but it does not mean that if the matter
is one in respect of which no relief is sought it
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
21
is not directly or substantially in issue. It may
or may not be. It is possible that it was
“directly and substantially” in issue and it
may also be possible that it was only
collaterally or incidentally in V issue,
depending upon the facts of the case. The
question arises as to what is the test for
deciding into which category a case falls? One
test is that if the issue was “necessary” to be
decided for adjudicating on the principal issue
and was decided, it would have to be treated
as “directly and substantially” in issue and if
it is clear that the judgment was in fact based
upon that decision, then it would be res
judicata in a latter case (Mulla, p. 104). One
has to examine the plaint, the written
statement, the issues and the judgment to find
out if the matter was directly and
substantially in issue (Ishwer Singh v. Sarwan
Singh 2 and Syed Mohd. Salie Labbai v.
Mohd. Hanifa). We are of the view that the
above summary in Mulla is a correct statement
of the law.
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
22
19. We have here to advert to another principle of
caution referred to by Mulla (p. 105);
“It is not to be assumed that matters in
respect of which issues have been framed are
all of them directly and substantially in issue.
Nor is there any special significance to be
attached to the fact that a particular issue is
the first in the list of issues. Which of the
matters are directly in issue and which
collaterally or incidentally, must be
determined on the facts of each case. A
material test to be applied is whether the court
considers the adjudication of the issue
material and essential for its decision.”
41. In the matter of Adhis Chandra Sinha (supra), the Hon’ble
Division Bench, in the facts of that case, was of the view that
the previous suit filed in Alipur Court even if succeeded and
the disputed notice failed resulting in failure of one of the
grounds in the High Court suit and the rest of the grounds in
the High Court suit being independent could have proceeded
with. In the facts of the instant case, as already discussed
above, if the notice to quit dated June 12, 2020 is determined
to be illegal and void in the pending second City Civil Court
suit, prayer (b) in the instant suit praying for eviction by the
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
23
landlord would become barred by res judicata and
consequently redundant. The second City Civil Court suit was
filed prior in point of time. The rest of the reliefs in the instant
suit are consequential to the prayer for eviction. Hence the
decision on the issue in the second City Civil Court suit would
have a material bearing on the reliefs claimed in the instant
suit, as the issues are directly and substantially in issue.
Similarly prayer (c) in the instant suit would depend whether
the lessee will be declared as an unauthorized occupant or not
which is an issue in the pending first City Civil Court suit
while adjudicating the notice of the landlord dated March 7,
2017. Therefore, the issues involved in the instant suit are
directly and substantially in issue in those two previous City
Civil Court suits. Thus, the ratio laid down In the matter of:
Adhis Chandra Sinha (supra) and Bepin Behari(supra) are
not applicable in the facts and circumstances of the instant
case.
42. For adjudicating an application filed under section 10 of the
Code, the primary authority and obligation of the Court is to
examine whether the matter in issue in the subsequent suit is
directly or substantially in issue with the previous suit. This
provision will not apply where a few of the matters in issue are
common and will apply only when the entire subject matter in
controversy is same. The matter in issue may not be
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
24
equivalent to any of the questions in issue. 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 before which subsequent suit has been filed, is
prohibited from proceeding with the trial of that suit if the
conditions laid down under section 10 of the Code are
satisfied. The intention of the framers of the provision of
section 10 of the Code and the purpose of enactment thereof
with its underlying object is to prevent the Courts of
concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations, when the cause of
action in the two pending suits are such where the issue in
the subsequent suits is directly and substantially in issue in
the previous suit where, inter alia, the parties are same.
43. In the facts of the instant case, as already discussed above,
this Court is of the opinion that the reliefs claimed in the
instant plaint shall depend and/or substantially depend on
the result of the pending previous two City Civil Court suits.
The final decisions in the said two previous City Civil Court
suits would have a material bearing on the reliefs claimed in
the instant suit, as the entire issue in the instant suit is in
issue and substantially in issue with the pending two previous
City Civil Court suits.
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
25
44. In view of the forgoing reasons and discussions, the instant
suit shall remain stayed till the two suits pending in the City
Civil Court are conclusively decided in accordance with law.
45. However, this Court expects that the two suits pending before
the City Civil Court shall be decided as expeditiously as
possible.
46. Resultantly, this application being IA GA-COM/5/2025
stands allowed, without any order as to costs.
(ANIRUDDHA ROY, J.)
Sbghosh/Arsad
IA NO. GA/1/2022 & GA-COM/5/2025
In CS-COM/419/2024
A.R., J.
