SHEIKH MOHAMMAD YASIN Vs. SHEIKH MD ABDUR RAZZAQUE

JUDGEMENT

(1.) The question which arises for decision in this case is whether the hearing of Small Cause Court Suit No, 107/93 of 1951, pending in the Court of the 1st Subordinate Judge, Muzaffarpur, should be stayed under the provisions of Section 10, Civil P. C. till Second Appeal No. 1545 of 1951 is finally heard and determined in the High Court.

(2.) It appears that Second Appeal No. 1545 of 1951 is an off-shoot of a small cause court suit which was brought by the opposite party for recovery of house rent from the petitioner for a period of one year--from July, 1947, to August, 1948. The suit was originally instituted as a small cause court Suit in the Court of the 1st Munsif of Muzarfarpur; but, subsequently, it was heard as a money suit. One of the issues involved in that case was whether the plaintiff had title to the house. The trial Court dismissed the suit; but, on appeal, the judgment of the trial Court was set aside, and the opposite party was granted a decree. Against that decree, a second appeal has been brought in the High Court on behalf of the petitioner. The opposite party have now instituted a small cause court suit, No. 107/93 of 1951, in the Court of the 1st Subordinate Judge, Muzaffarpur, claiming rent for the very house in dispute from September 1948, to August 1951. The petitioner contested the suit on the ground that there was no relationship of landlord and tenant, and that the house in dispute belonged to Mt. Bibi Latifan. The petitioner moved the Court for stay of the suit under Section 10, Civil P. C. till the final disposal of the second appeal; but the Court directed by its order dated 30-11-1951, that the petitioner should obtain a stay order from the High Court.

(3.) In support of this application, Mr. S.A. Saghir submitted, in the first place, that the case falls within the ambit of Section 10, Civil P. C. and that the small cause court suit No. 107/93 of 1951, should be stayed under the provisions of that section. It was contended by Counsel that the question of title was raised in both the suits, and, though the subject-matter of the two suits was not exactly identical, the provisions of Section 10 would be applicable. But the argument cannot be entertained in view of the decision of a Division Bench of this Court in -- ' Kesho Prasad Singh v. Shiva Saran Lall', AIR 1919 Pat 491 (A). It was held in that case that Section 10 contemplated that if all the matters in dispute are net substantially the same in both the suits the mere fact that the question of title is raised in both the suits and decided in the first suit was not sufficient to attract the operation of Section 10. Mr. S. A. Saghir said that this view as to the construction of Section 10 has not been adopted in certain decisions of other High Courts. We however, see no sufficient ground for doubting the correctness of the decision reported in --'AIR 1919 Pat 491' (A). Actually, the view adopted in this case coincides with the view taken by Rankin J. in a subsequent Calcutta case, in -- 'Jamini Nath Mallik v. Midnapur Zamindary Co.', AIR 1923 Cal 716 (B). We therefore, think that Section 10 does not strictly apply to the present case, and the hearing of the second suit cannot be stayed under the provisions of that section.