RAMRICHPAL SINGH Vs. DAYANAND SARUP MINOR

JUDGEMENT

(1.) THESE two cases came up before a Bench for hearing in the year 1949 and on 10-5-1949, they were referred to a Pull Bench as there was a conflict of opinion between the Allahabad High court and the Oudh Chief Court on the point Whether a revision under Section 115, Civil P. C. (Act 5 of 1908) was entertainable by the High Court in a case where a Judge had refused to grant an application under Section 10 of the Code. The Allahabad High Court had held that no revision lay to this Court against the order as it was not a case decided, while the Oudh Chief Court had taken a contrary view that it was a case decided and a revision was entertainable. After the amalgamation of the two Courts in 1948 it was considered proper that there should remain no conflict and the case was, therefore, referred to a Full Bench for decision. When, however, the case was put up before a Bench of three Judges on 22-10-1951, they referred it to a larger Bench and on 24-10-1951, when the case came up before a Bench of five Judges they referred it to a bench of seven Judges. The Full Bench of three Judges or of five Judges did not give any reasort why it was necessary to have the point decided by a Bench of seven Judges. It was, probably, due to the fact that there was a decision by a Bench of five Judges in -- 'buddhu Lal v. Mewa ram', AIR, 1921 All 1 (FB) (A) which the learn- ' ed Judges thought might have to be reconsidered.

(2.) THE points referred to the Full Bench are:

(3.) THE facts of the case briefly are that a suit was filed for recovery of arrears of rent of a house on the ground that the defendant was a tenant. The defendant filed a written statement in which among other pleas he took the plea that there was a previously instituted suit pending in which the matters in issue in this case were directly and substantially in issue and the suit should therefore remain stayed under Section 10, Civil P. C. (Act 5 of 1908 ). On the pleas raised in the case a number of issues were framed, issue No. 6 being as follows : "is suit liable to be stayed under Section 10, Civil P. C. ?" the Court held that the mere fact that appeals were pending against decrees in suits for rent for certain other periods prior to the period now in dispute did not justify the grant of stay under section 10 of the Code and rejected the application. Against that order dated 10-7-1948, this revision was filed.