SULTANAT JHAN BEGAM Vs. SUNDAR LAL

JUDGEMENT

(1.) THIS application for. revision has arisen under the following circumstances. The plaintiff applicant brought a suit against the first two defendants for their ejectment from a house. These defendants contested the suit on the ground that they had already vacated the house and that there were other persons who had an interest in the disputed house. Subsequently, they presented an application to the Court praying that these other persons, whose names are Ishaq Ahmad and Ismail. Ahmad, should be made defendants to the suit. THIS application was granted and the aforesaid persons were added as defendants, After issues were framed and a certain amount of evidence was recorded, the two persons aforesaid made an application to the Court to stay proceedings under Section 10 of the Code of Civil Procedure, inasmuch as there had been a suit between them and the plaintiff and others in regard to the title of those defendants in respect of this and other property; that that suit had been decided by the Subordinate Judge and that an appeal from the decree of the Subordinate Judge was pending in the High Court. THIS application was granted and the Munsif made an order, apparently under Section 10, staying proceedings until the decision of the appeal pending in the High Court. It is contended on behalf of the applicant-plaintiff, that the Court caught not to have stayed proceedings under Section 10 and that that section was not applicable to the case. It seems to me that, upon the facts as alleged by the defendants and accepting the view that those defendants had an interest in the property, that circumstance would not preclude the plaintiff from maintaining the present suit. It was alleged that the principal defendants had entered into possession as tenants of the plaintiff. If that was so, it was not open to them to contest the title of the plaintiff, and it was wholly unnecessary to add Ishaq Ahmad and Ismail Ahmad as defendants. Furthermore, assuming that these persons had, an interest in the house as held in the suit decided by the Subordinate Judge, the plaintiff urges that she, as one of the co-sharers or at least as Benamidar for her husband who has been held to be a co sharer, was entitled to maintain the suit for ejecting the principal defendants who, according to the plaintiff, were at the time of the suit mere trespasser. These, if established, would be valid grounds for disposing of the suit without staying proceedings for the final determination of the suit decided by the Subordinate Judge and now pending in appeal in the High Court. As already stated, the plaintiff, for the purposes of this suit, was prepared to admit the position that Ishaq Ahmad and Ismail Ahmad were part owners of the property subject to the payment of a certain sum of money which the decree of the Court had ordered them to pay. If that was the position, Section 10 did not justify the Court in ordering proceedings to be stayed so as to keep the case pending in the Munsif s Court for about two years which would be the ordinary period after which the first appeal pending in this Court would be disposed of. THIS seems to me to be a case in which no order ought to have been passed under Section 10; but the difficulty which arises is, has this Court power to interfere under Section 115 of the Code of Civil Procedure ? The suit has not yet been decided and the order for stay is not a decision of the suit. Is it "case" within the meaning of that section ? I feel it very difficult to hold that it is a case apart from the suit pending in the Court below. It would be stretching language to hold that an application under Section 10 is a case and an order passed on that application is the decision of a case. The word "case" in Section 115 undoubtedly is not confined to a suit? but it cannot, in my opinion, be construed to mean an interlocutory order in a suit although the order may be of such a nature that it cannot be interfered with even under the provisions of Section 105 of the Code when an appeal is preferred from the final decree in the suit. The principle of the ruling of this Court in the case of Mohammad Ayub v. Mohammad Mahmood 6 Ind. Cas 831 : 32 A. 623 : 7 A.L.J. 741 seems to me to be applicable to this case. I have been referred to the resent ruling in the case of Bhargava & Co v. Jagan Nath Bhagwan Bass 51 Ind. Cas. 331 : 17 A.L.J. 718 : 41 A. 602 : 1 U.P.L.R. (A.) 120. With great respect, I find great difficulty in following the view adopted in that case. Moreover, the point raised in that case is not similar to that which arises in this case. I am, therefore, unable to hold that an application for revision lies in this ease under Section 115 and I must dismiss the application on this ground, at the same time I would suggest to the learned Munsif the desirability of re-considering his order upon proper application being made to him and of hearing and disposing of the suit and not keeping it pending in his Court for another two years or so. I make no order as to costs.