1. This is an application in revision from an order of the District Judge, Cawnpore, remanding a revenue appeal.
2. The respondent, Debi Charan, first instituted a suit for arrears of rent based on a registered kabuliyat executed by the applicant. The suit was resisted on the ground that the kabuliyat was fictitious, that in respect of a sale-deed executed by the present applicant he still remained the proprietor of the land and that there was no relation between the parties of a land holder and a tenant. The revenue Court ordered that the present applicant, who was a defendant to that suit should under Section 199, Tenancy Act, establish his title in a civil Court. Accordingly, he filed a suit for declaration, which was dismissed by the civil Court and an appeal from that decree is still pending in this High Court and is numbered as First Appeal No. 569 of 1926. In the meantime the revenue Court decreed the claim for arrears of rent on the basis of the judgment of the subordinate civil Court ex parte, but later on the ex parte proceedings were set aside and the suit restored, and is still pending. As limitation was expiring, the present respondent filed another suit for arrears of rent for subsequent years. The defendant inter alia took the plea that the second suit should be stayed, and also raised the question of proprietary title. The revenue Court decreed this claim, holding that the question of proprietary title had already been decided.
3. On appeal to the District Judge, he remanded this case with directions that the lower Court should proceed in accordance with Section 271, Sub-clause 2, Agra Tenancy Act.
4. On behalf of the applicant it is contended that Section 10, Civil P.C., applied to this case and the lower Court was bound to stay the proceedings. We do not think that this contention can prevail. Under section 12 of the old act, which corresponds to the present Section 10, it was clearly held by this Court that, unless the subject-matter in the two suits is identical and the reliefs are also the same, that section would be inapplicable: Bal Kishan v. Kishan Lal [1889] 11 All. 148. The words "for the same reliefs" have been omitted from the new section and there are a few other slight alterations; but it is noteworthy that, while Section 11 provides that no Court shall try any suit or issue etc., Section 10 merely says that no Court shall proceed with the trial of any suit etc. It follows that the mere fact that one issue is common in the two suits would not necessitate the stay of the subsequent suit. Although the words matter in a suit' cannot be held necessarily to mean the subject-matter in dispute, it seems clear that they must mean the entire matter in controversy and not one of several issues in the case. Had the intention of the legislature been to widen the scope of Section 10 so as to make it co-extensive with Section 11 the language employed would have been identical.
5. That Section 10 is limited in its scope has been held by several High Courts although no case of this Court has been brought to our notice. We may in this connexion mention Bepin Behari v. Jogendra Chandra [1916] 24 C.L.J. 514 Kesho Prasad Singh v. Shiva Saran Lal [1919] 4 Pat. L.J. 557 and Kuberan Nambudri v. Roman Nair A.I.R. 1925 Mad. 574.
6. We, therefore, think that the learned Subordinate Judge was right in his conclusion that Section 10 did not apply to the present case. In these circumstances, he has rightly directed the trial Court to proceed in accordance with Section 271, Sub-clause 2.
7. Although it is by no means obligatory on the subordinate Court to stay the suit it is entirely a matter of discretion whether or not to adjourn the hearing for a reasonable time and await the decision of the final Court of appeal in order to prevent the same evidence being recorded over again. The application dismissed with costs.
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