BHAGWAT PRASHAD SINGH Vs. SUDHESHWAR SINGH

JUDGEMENT

(1.) This application by the plaintiffs arises out of an order passed by the Munsif. 2nd Court, Patna, on 11-7-1952 in Rent Suit No. 1101 of 1951.

(2.) The plaintiffs are the landlords of a holding for which they brought a suit for 'bhaoli' rent, being Rent Suit No. 1207 of 1949, for the years 1355 and 1356 Fasli. The defence of the tenants-defendants in that suit was that the produce rent had already been commuted into cash rent. The plaintiffs in the suit contended that the commutation order illegal was and not binding on them. In that suit the defence of the tenants-defendants, was accepted and the suit was decreed (in favour of the plaintiffs on the basis of communted rent. The plaintiffs preferred an appeal in the lower appellate Court which affirmed the decree of the trial Court. Against the decree the lower appellate Court the plaintiffs preferred appeal in the High Court which is Second Appeal 838 of 1951 and is still pending. Subsequently, the plaintiffs brought another rent suit against the same defendants for the 'bhaoli' rent of the same holding, being Rent Suit No. 1101 of 1951. The claim in this suit was for the rent of a subsequent period, namely, 1357 and 1358 Fasli. In this case also the tenants-defendants raised the same plea which they had raised in the previous Rent Suit No. 1207 of 1949, namely, that the produce rent had already been commuted into cash rent. As in the previous case, the plaintiffs' contention in this case also is that the commutation order is illegal and not binding on them. The plaintiffs, therefore, filed an application in the Court below for stay of the hearing of the suit under Section 10, Civil P. C. pending disposal of the second appeal in the High Court. The learned Munsif dismissed the application holding that Section 10. Civil P. C. was not applicable to the case! Against that order the plaintiffs have come up in revision to this Court.

(3.) Mr. G. P. Agarwalla for the petitioners has contended that on plain reading of Section 10 it is clear that the suit should have been stayed till disposal of the second appeal by the High Court, So far as this Court is concerned, it is settled law that in order to make Section 10 applicable all the matters in dispute must substantially be the same in both the suits. In --' Kesho Prasad Singh v. Shiva Saran Lal, AIR 1919 Pat 491 (A) the suit was brought for arrears of pension for a certain period, but before that another Suit had been brought for the pension of an earlier period. The previous suit was dismissed by the trial Court, but decreed on appeal by the High Court. It was held in that case that the defendant was liable to pay pension to the plaintiff. Against the judgment and decree of the High Court or appeal was preferred before their Lordships of the Privy Council. While that appeal was pending before the Judicial Committee an application was made in the subsequent suit for stay of the hearing of that suit till disposal of the appeal by the Privy Council. It was held in that case that Section 10, Civil P. C. did not, apply to a claim relating to a period subsequent to the claim in the former suit. Relying on this decision a Division Bench of this Court has also held in -- ' Mohammad Yasin v. Md. Abdur Razzaque', AIR 1953 Pat 10 (S), that Section 10, Civil P. C., could not be applicable unless all the matters in dispute were Substantially the same in both the suits. In the present case also the subsequent suit is for the subsequent period and, therefore, the subject-matter of the two suits, namely, Suit No. 1101 of 1951 and Suit 1207 of 1949, is not identical and Section 10 is therefore not applicable. In the latter case of -- ' Mohammad Yasin v. Md. Abdur Razzaque', (B), the ir Lordships have taken the view that though Section 10 is not applicable to a case like the present one, the High Court can stay the hearing of the subsequent suit pending disposal of the appeal in the High Court under. Section 151, Civil P. C., and applying that principle their Lordships stayed the hearing of the subsequent suit in that case pending disposal off the appeal in the High Court.