Chandra Prakash, J. - (1.) THIS is a defendant's application in revision against the order dated July 24, 1972 of Shri K. N. Misra, Ad. ditional Civil Judge, Jhansi, refusing to stay suit No. 117 of 1971 under Section 10, C.P.C. and consolidating the two suits under Section 151, C.P.C.
(2.) THE undisputed facts are that Dwarika Das applicant filed suit No. 723 of 1970 against Har Prasad opposite party No. 1 for the recovery of Rs.1,075.00 on the allegations that the applicant paid Rs.l,000/ -on March 13, 1969 to opposite party No. 1 by bank draft but the latter had not paid the amount. Suit No. 117 of 1971 was filed by opposite party No. 1 and his father opposite party No. 2 against the defendant applicant for the recovery of Rs.5,080.00 on the basis of a promissory note dated January 15, 1969 alleged to have been executed by the applicant in favour of the opposite parties. It will thus be seen that the suit filed by the applicant against the opposite party was earlier than the suit filed by the opposite parties against the present applicant. In suit No. 117 of 1971 the defendant-applicant moved an application for the stay of the suit under Section 10, C.P.C. This application was opposed by the opposite parties. After hearing the parties the trial court rejected the applicant's application under Section 10, C.P.C. but consolidated both the suits with a direction that they will be heard together and suit No. 723 of 1970 will be the leading case. Against the above order the defendant-applicant has come up in revision before me.
(3.) THE first contention raised on behalf of the applicant was that the Court below erred in refusing to stay suit No. 117 of 1971 under Section 10, C.P.C. After hearing the parties' counsel and after going through the record I am unable to accept this contention. One of the reasons given by the Court below for rejecting the application under Section 10, C.P.C. was that the parties in both the suits are not identical. Opposite party No. 2, who is a plaintiff in Suit No. 117 of 1971, is not a party to suit No. 273 of 1970 at all. But there can be cases in which Section 10, C.P.C. can be applied although the parties are not exactly identical and I am supported in my view by the ruling reported in Wahid-un-nissa Bibi v. Zamin All A.I.R. 1920 All. 70. The other ground on which the court below rejected the application under Section 10, C.P.C. was that the causes of action in the two suits were different. This ground, in my opinion, was sufficient to reject the applicant's application under Section 10, C.P.C. The cause of action in suit No. 723 of 1970 instituted by the present applicant was the advance of Rs.1,000.00 by means of a bank draft to opposite party No. 1 on March 13, 1969. The cause of action in the other suit No. 117 of 1971 filed by the opposite parties against the applicant was the alleged execution of a promissory note by the present applicant in favour of the opposite parties on January 15, 1969 for the alleged consideration of Rs.5,000.00. Both the above causes of action were, therefore, unconnected. No doubt, the case of the opposite parties in suit No 117 of 1971 was that Rs.1,000.00 alleged to have been advanced by the applicant to opposite party No. 1 was a mere part payment of the amount of promissory note on which suit No. 117 of 1971 was based. The applicant denied even the execution of that promissory note altogether. Nevertheless, the fact remains that the cause of action in the two suits were entirely different and independent.;