Gopal Prosad Bhakat vs Satadalbasini Devi

Guha Ray, J.—This petition in revision is directed against an order refusing to stay a Money Suit instituted by the opposite party against the Petitioner u/s 10 of the Code of Civil Procedure. The suit was for recovery of arrears of rent at the monthly rate of Rs. 30 for certain pieces of land from Baisakh, 1357 B.S. to Chaitra, 1359 B.S. The defence in the suit was that the Petitioners were not monthly tenants at the rate of Rs. 30 hut were annual tenants at the rate of Rs. 29 per year. There was a similar suit between the parties for arrears of rent for four months from Agrahayan, 1353 B.S. There was in that suit a claim for ejectment also but the claim for ejectment was dismissed and the claim for arrears of rent was decreed. There is now a second appeal pending at the instance of the Petitioners from that decree.

It was argued before the trial court that what was in issue in the earlier suit is substantially or directly not in issue in the second suit also but the trial court held that the causes of action in the two suits were not identical and so Section 10 had no application. The question is whether that view is correct or not. Section 10 runs as follows:

No Court shall proceed with the trial of any suit in which the matter in issue it also directly and substantially in issue in a previously instituted suit between he 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.

It is clear, therefore, that in order that Section 10 might be applicable- one of the conditions is that the matter in issue in both the suits must be the same and the second condition is that the earlier suit must be pending in a court having jurisdiction to grant the relief claimed, that is, the claim in the second suit. It has been held in the case of Choudhury Jamini Nath Mallick v. Midnapore Zemindary Company (1923) 27 C.W.N. 772 where two suits involving claims for certain cesses against the Petitioners were decided against them and were pending in appeal, when a rent suit was brought against them that though for the purpose of Section 10 suits include appeals, Section 10 did not apply to the present case for it was a suit for a different debt altogether and for a debt which was not in existence when the last of the previous suits was brought and under the new Code the section did not apply unless the previous suit was before a court which was competent to grant the relief claimed in a subsequent suit and in the suits under appeal the court could not possibly give judgment for cesses that fell due long after the institution of those suits. On behalf of the Petitioners reliance was placed on another case of this Court (Sm. Jimmat Bibi v. The Howrah Jute Mills Company, Ltd. (1932) 36 C.W.N. 667) in which the terms of Section. 10 do not appear to have been considered and in which the issues in both the suits appear to have been identical. Having regard to the words of the section it is imperative that in order to apply Section 10 the court before which the earlier suit pending in appeal must have jurisdiction to grant the relief claimed in the subsequent suit. It is argued that the court before which the earlier suit is pending in appeal can never have jurisdiction to grant the relief claimed in the subsequent suit because the subsequent suit is- till pending before the original court but the obvious implication of this part of the section is that the issue must be absolutely identical in both the suits, so that by the decision of the earlier suit the second suit will be completely disposed of. But that is not so in these cases. The decision of the earlier suit may dispose of one of the points at issue in the subsequent suit, namely, as regards the rate of rent but that will not dispose of the claim in the second suit, because the question whether arrears were actually due is still to be decided. That being so Section 10 is not applicable to a case where the issues are not absolutely identical with those in a previous suit. On behalf of the Petitioners it is argued that even though Section 10 may not apply the court should in its inherent jurisdiction stay the second suit because the question what is the rate of rent is in issue in both the suits. Having regard, however, to the facts that this is a suit of 1953 and that this application for stay was made on February 4, 1957 after an earlier application for stay u/s 10 of the Code of Civil Procedure, filed on November 10, 1956, had been withdrawn on December 21, 1956 when the case was fixed for final hearing on February 6, 1957. I am not at all inclined to hold that ends of justice require that the subsequent suit should be stayed.

The petition must accordingly be dismissed and the Rule discharged with costs.