S.C. Manchanda, J.
1. This is a revision against the order of the Additional Civil Judge Varanasi dated the 13th May, I960, whereby he directed that suit No. 94 of 1957, filed by the applicant, the Union of India, be stayed under the provisions of Section 10 of the C. P. C.
2. The stay was granted on the ground that in a previous suit No. 20 of 1949, the opposite parties had filed a suit against the present applicants and in the written statement filed by the Union of India a plea was taken, in paragraph 22OF the written statement, that the plaintiff had obtained a refund of octroi duty from the Municipal Board, amounting to Rs. 22,445/9/ 9, in connection with this transport contract, which is justlydue to and recoverable by the Union of Indiaand which was being unjustly withheld by the plaintiff. It was further pleaded that the plaintiff had not only failed to perform his part ofthe contract but was guilty of breach of trust. Asthis was a claim set up by the present applicant in suit No. 20 of 1949 by way of set off the CivilJudge had rightly called upon the applicant topay the requisite Court-fee. The requisite Court-fee was not paid and, therefore, the question of a counter claim or set off was given up by the present applicants in that suit.
An issue, however, was struck in that suit as to whether the plaintiff (Opposite Party) had committed any breach of contract by withholding therefund of octroi duty, if so, what is its effect? Theissue was decided against the present applicants and it was observed:
'If the defendants had any grudge against the plaintiffs they could seek their remedy by a properly instituted suit against the plaintiffs for the recovery of the amount For the purposes of the present case the defendants have miserably failedto prove that there was any such contract whereby the defendant was entitled to get the refund of octroi duly. I therefore hold that the plaintiff has not committed any breach of contract as pleaded by the defendant.'
The Court went on to decree the plaintiff's (opposite party's) suit No. 20 of 1949 in the sum of Rs. 13,305/- against Rs. 15,193/- claimed bya judgment, dated the 19th October 1954. Against the said decree, an appeal by the Union of India was filed in this Court, appeal No. 76 of 1955,which is still pending.
The applicants then also filed suit No. 94 of 1957, out of which the present revision has arisen. It is manifest that the pendency of the appeal in this Court against the decree in suit No. 20 of 1949 can have no substantial bearingl on thepresent suit for the simple reason that the applicants (Defendants) had not paid the Court-fee as required in respect, of the counter claim or set off claimed for the octroi duty said to have been realised by the opposite party. Therefore, even if the High Court accepts the applicant's appeal on the point and holds that there was a breach of contract by the opposite parties in respect of the octroi duty realised by the applicants would not be entitled to a decree as no Court-fee was paid by them on such relief. Under Section 10 of the C. P. C. the trial of any suit can only be stayed, if a suit has been previously instituted between the same parties and such suit or appeal is pending and further that the relief claimed in the second suit could have been granted in the first suit As already observed, the appeal pending in this Court against the decree in suit No. 20 of 1949, wouldnot entitle the applicants to the relief which they claim in the present suit, Suit No. 94 of 1957. The order of stay granted, therefore, in my judgment was without jurisdiction and it is accordinglyset aside.
3. The application is allowed. Costs will abide the event. Let the record of this case be sent down to the trial Court as early as possible.