1. This batch Revision Petitions have been filed by the tenants who succeeded in getting the suits filed for recovery of rents stayed by application of Section 10 of the Code of Civil Procedure. These tenants have succeeded in making out that O. S. NOB., 82, 87, 88, 89, 219 of 59 and Small Cause Suit No. 213 of 1959 on the file of the District Munsiff's Court, Eajam, pending against them cannot be tried pending the disposal of Second Appeal No. 448 of 59 which culminated out of O. S. No. 589 of 1953 on the file of the same Court as in both sets of causes, the matter in issue is also directly and substantially the same. All these suits, it may be pointed out, are filed by the landlord for recovery of rents in respect of the same properties but for successive years. Though the petitioners thus obtained orders staying the . trial of these suits, they complain by filing the present Revision_ Petitions that the Lower Court imposed certain 'terms which are illegal and should be considered as alien to the powers conferred upon a Court under Section 10 Civil Procedure Code. The material portion of the order complained of is in para 7 in the following terms: -
'I therefore allow these petitions holding that Section 10 Civil Procedure Code is applicable but subject to the condition that the petitioners shall deposit into Court half of the suit amounts and furnish third party security in respect of the other half by 19-4-1960 failing which these petitions shall stand dismissed. If during the period in which the suits remain stayed any further year's rent becomes due, the same conditions would apply namely, that the petitioners shall deposit half of that year's rent as well as furnish security for the remaining half. Call on 19-4-1960.'
It would thus be found that the learned District Munsiff, while staying the suits under section 10 Civil Procedure Code, imposed terms which in one_ contingency, would render the stay of the trial of the suits inoperative. In other words though the learned District Munsiff came to the conclusion that Section 10 applies, he is not prepared to grant the stay unless and until the petitioners deposit half the rents in the suit year and also go on depositing half the rent in every subsequent year. This would mean that the learned District Munsiff made up his mind to grant stay of the trial of the suits not because the conditions specified in Section 10 for grant of stay of the trial of suits have been satisfied, but only on condition that the petitioners, who are tenants, do not place themselves in such a position as not to allow accumulation of arrears. The latter consideration as entering into things which ought to be considered while applying Section 10 Civil Procedure Code is inconceivable, however much it may otherwise be justified. Section 10 Civil Procedure Code reads:
'No Court shall proceed with the trial' of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the name or title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court, beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court.'
What is stressed and considered as the only ground for attracting this Section is the fact that firstly, in the later suit whose trial is sought to be stopped, the matter in issue is also directly and substantially in issue in the previously instituted suit; secondly, the suit must be between the same parties, or between the parties under whom they or any of them claim; and thirdly they should be litigating under the same title. It is clearly pointed out by this Section that it is immaterial whether both suits are laid in the same Court or pending in different Courts.
2. Further, what is enjoined upon a Court when these conditions are satisfied is that the Court which has to deal with the later suit shall not proceed with the trial of that suit. The language of this section is clearly mandatory in the sense that once these conditions are fulfilled, the operative part of the Section comes into plays as to stay the trial of the suit. Therefore, it is not possible for any Court thereafter to also insist upon other conditions being fulfilled as if any discretion is left in the Court in the matter of ordering stay of the trial. To make the meaning more plain, it is impossible for am Court to stay the trial by seeking also to impose any other condition; and secondly make an operation of the stay contingent upon the fulfilment or the performance of any other obligation; and much less, to make it possible for trial of the Euit to be taken up in default of the performance of a superimposed condition as is contemplated by the order under revision. For these reasons. I am perfectly convinced that the order of the lower Court is wrong in so far as it has imposed the terms as the payment of half the rent for the suit year or for the future years.
3. Mr. Mangachari, in attacking the order of the lower Court, placed before this Court the decision in Senaji Kapurchand v. Pannaji Devi-chand, ILR 46 Bom 431 : (AIR 1922 Bom 276) to make out that what is stayed by a Court by virtue of the powers conferred under section in Civil Procedure Code is only the trial of a suit and that a Court is not precluded from granting interim reliefs by way of appointment of a receiver or other reliefs and therefore adding terms at the time of staying the trial is illegal. On the analogy of it, I consider that it would certainly be competent to make just or proper orders keeping the parties in possession, but the same powers cannot be made use of nor even the inherent powers under Section 151 Civil Procedure Code to impose terms while staying the trial of a suit under Section 10 Civil Procedure Code.
4. Mr. Jagdish Sarma referred me to a decision in Ahmad Abdul Sukkoor v. Vallabhadas Kanji Firm, : AIR1950Mad219 which appears in a manner to support the plea that even in cases where a suit is stayed under Section 10, the inherent powers under section 151 Civil Procedure Code could be exercised to provide appropriate remedies. No doubt, in that decision it has been held that to suits stayed under Section 10, Section 151 Civil Procedure Code is Dot applicable. But that does not mean that while passing orders under Section 10, passing of ancillary orders under section 151 imposing terms are either appropriate or legal. This, decision, therefore, does not help the respondent.
5. The result is, while the order staying the trial of O. S. Nos. 82, 87, 88, 89, 219/59 and Small Cause Suit No. 213 of 1959 will remain, the terms imposed are ordered to be deleted. It also follows that these revision petitions are allowed with costs in C. K. P. No. 670 of 1960 only and the Advocate's fee is fixed in that petiton at Rs. 35/-.