P.C.Mallick, J. - (1.) This is an application for stay under Section 10 of the Code of Civil Procedure.
(2.) This suit was instituted by the plaintiff firm for the recovery of the sum of Rs. 7669.87 np. on a commis sion agency agreement. The defendants impleaded are the firm of Nawal Kishore Debi Prosad, with whom the plaintiff had the said commission agency agreement. Defendants No. 2 and 3, are the partners of the said firm of Nawal Kishore Debi Prosad. It is alleged in the plaint that the defendant firm has become liable to pay under the said agreement the sum claimed in the plaint, the accounts between the two firms, in terms of the agreement, were adjusted at the end of the Sambat years and the amount claimed has been found to be due on such adjustment. After giving credit for the amounts paid, for the recovery of the balance the instant suit has been instituted. Two of the defendants, namely, the defendant firm and defendant No. 2 have not entered appearance for have they filed their written statement. Defendant No. 3 has only entered appearance, but has not filed written statement. Instead, he has taken, out the present notice for stay on the ground that he had instituted previously a suit in the Muzaffarpirr Court in which the issues raised are the same as in the instant suit. No written statement has been filed by the present petitioner in the instant suit disclosing the defence. Normally I would net have allowed an application under Section 10 to be moved unless the party making the application has filed his written statement.' But I find from a decision of this Court in the case of S. M. Modi v. Mansata Film Distributors, our Appeal Court did entertain an application under Section 10, even though no written statement was filed. Their Lordships looked to the plaint in the previous suit for the purpose of finding out what the disputes between the parties are. A copy of the plaint in the Muzaffarpur suit is annexed to the petition. A perusal of the plaint makes it clear that the petitioner defendant No. 3 is seeking to be relieved of his liability as partner on the ground that there has been a dissolution of the partnership that on such dissolution the other partner is entitled to recover the assets and be responsible for the liabilities and that the plaintiff firm has agreed to look to the other partner to recover claim against the partnership firm and not to the petitioner. Whether or not the petitioner has been relieved of his liability as a partner is the only substantial question to be decided in the Muzaffarpur suit. This question arises and has to be adjudicated in the instant suit assuming that the same case is made in the written statement if filed. The point to be noted is, that it would be an issue only as between the petitioner and the plaintiff firm. This would not be any defence to the plaintiff's claim as against the defendant firm and the other partner.
(3.) If the trial of the suit takes place leaving out the Sureka defendant who has instituted suit in the Muzaffarpur Court, Section 10 would not be a bar to the trial because it would not involve determination of the issue raised in the Muzaffarpur suit. The effect of proceeding with the suit against the other defendants would mean that the suit is partially stayed and not fully. Can it be done under Section 10 of the Code? My answer is that it can be done. All that Section 10 does is to direct a Court not to try a suit in which the matter in issue is also directly and substantially in issue is a previously instituted suit. If after a partial stay the trial of the suit does not involve the determination of anv issue to toe tried in a previously instituted suit. I do not see why the trial of tha instant suit as against the other defendants should be stayed under Section 10 of the Code of Civil Procedure.;