Shiv Dayal, J.
1. This revision is directed against an interlocutory order passed by the Civil Judge, First Class, Gwalior on June 29, 1959 in Civil Suit No. 20 of 1955 whereby he has refused to stay the suit on the application of the defendant.
2. The facts material for this revision are these:-The plaintiffs, Kashinath and Rambabu, brought this suit on January 8, 1955, against the petitioner Radhey Shyam for ejectment from a shop and for arrears of rent on the allegations that the suit shop, situated in the ground floor of a building called 'Sweet Cottage,' was taken from them by the defendant on June 16, 1954, under a rent note executed by him at Rs. 35/- per month for 11 months; that the defendant paid Rs. 30/- on the 26th June Rs. 35/- on the 31st August and again Rs. 35/- on the 6th October 1954; that they were in arrears of rent from the 16th June to the 31st December, 1954; that the defendant started interferring with the plaintiffs' possession in respect of other portions of the house, that when the plaintiffs gave him a notice, he disputed their title and asserted his own; and that a notice of eviction was given by the plaintiffs on the 11th December, determining the tenancy on the 31st December, 1954. This suit was instituted on January 8, 1955, and was numbered as civil original suit No. 20 of 1955. This will hereinafter be called the First Suit.
3. Before filing his written statement in the first suit, Radhey Shyam along with his father and brothers filed a separate suit in the Court of the District Judge, Gwalior, for partition of joint Hindu family property alleging that Kashinath, Ram Babu and their sons together with the plaintiffs in that suit were all co-parceners of a Hindu co-parcenary. That suit was instituted on March 22, 1955 and will conveniently be called the second suit. In that suit the property in dispute in the first suit was also included.
4. Then Radhey Shyam filed his written statement in the first suit on April 29, 1955, wherein he denied to have executed a rent note as alleged by the plaintiffs, denied to be a tenant in the disputed shop, reiterated his status as a coparcener in firm Nandram Narain Das, a joint Hindu family firm, and alleged that since the suit shop belonged to that firm he was also a co-owner of the shop. He admitted to have paid the three amounts as asserted in the plaint but explained it by saying that Kashinath had represented to him that the payment of these monies would in no way prejudice his rights because he (Kashinath) was charging rent even from his own sons and, for the satisfaction, of the defendant, Kashinath handed over to him three receipts which had been passed in favour of his own son Laxmandas. Inter alia the plaintiffs' right to bring this suit was challenged.
5. On August 6, 1957, Radhey Shyam applied to the Court, in the first suit, to stay it under Section 10 or Section 151 of the Code of Civil Procedure. That was opposed by the plaintiffs. The trial Judge held that Section 10 of the Code of Civil Procedure was not attracted and that he did not consider, for the reasons he stated, that it was a fit case for stay in exercise of his inherent powers. The main consideration which weighed with him was that since in the first suit there would be no inquiry as to the title of the parties and the trial would be confined to the contract of tenancy, there would be no prejudice to the defendant.
6. Shri Patankar, learned counsel for the petitioner, strenuously contends that the first suit must be stayed because it is a possessory suit and preference must be given to the second one which is a title suit; secondly, the stay of the first suit will avoid the possibility of two conflicting judgments, for it is likely that in the first suit the Civil Judge may hold that the defendant is not a coparcener while in the second suit he may be declared to be a coparcener; and, thirdly that if the first suit is not stayed, finding by that Court whether the defendant is or is not a co-owner of the suit shop may operate as res judicata in his partition suit before the District Judge.
7. Shri Gupta, on the other side, opposes this revision with vehemence. The learned counsel argues that to stay or not to stay a pending suit under Section 151 of the Code of Civil Procedure is a matter which rests in the entire discretion of the trial Judge and there cannot be any interference with that discretion by this Court. Reliance is placed on their Lordships' pronouncement in the case of Keshardeo v. Radha Kissen, AIR 1953 SC 23. It is further maintained that in the present suit the only question for determination will be whether the relationship of landlord and tenant existed between the plaintiffs on the one hand and the defendant on the other.It is not open to the tenant to assert a title in himself or in a third person. Moveover, the plaintiffs will be prejudiced by the stay of the first suit because during the indefinite time which the second suit may take to end, the defendant will remain fn Occupation of the shop without any right. Above all, even if the second suit for partition is decreed in favour of the defendant in the first suit, that will have no bearing on the first suit inasmuch as one co-sharer can in the eye of law be the tenant of others, as stated in Mayne on Hindu Law (Eleventh Edn.) at page 378.
8. After giving my anxious consideration to the elaborate arguments advanced on both sides, I have reached the conclusion that the first suit must not be stayed. I give my reasons below.
9. The stay under Section 10 of the Code of Civil Procedure is out of the question in the present suit which was instituted earlier than the second suit. Moveover, for the application of Section 10 there must be a complete identity of parties and also identity of the subject matter which is not the case here.
10. Now, before the facts arc considered for the application of Section 151 of the Code of Civil Procedure, the legal position must be summed up. It is undoubted law that, apart from Section 10 of the Code, a Court has inherent powers to stay a suit pending the decision in a connected suit or proceeding in order to facilitate that real and substantial justice is done. The pre-eminent principle that a conflict between parties must be resolved according to a fair judicial trial and substantial justice must be rendered to the parties, can never be lost sight of.
Inherent powers to stay an otherwise competent suit can be exercised only for the ends of justice or to prevent abuse of the process of the Court under Section 151 of the Code of Civil Procedure. That jurisdiction must be sparingly exercised. Courts have evolved certain well defined principles for the exercise of that power. It is to be satisfied that if the suit is stayed the plaintiff will not suffer injustice, while if the action is continued the defendant will be a victim of such injustice as may amount to vexation and oppression. And the onus to make out both these points is on the defendant. It was held in Logan v. Bank of Scotland, (1906) 1 KB 141:
'The Court will stay an action, brought within the jurisdiction in respect of a cause of action arising out of the jurisdiction if satisfied that no injustice will be done thereby to the plaintiff, and that the defendant would be subject, to such injustice in defending the action as would amount to vexation and oppression, to which he would not be subjected if an action were brought, in another and accessible Court where the cause of action arose.'
Reference may also be made to the observations in Sealey (otherwise Callan) v. Callan, (1953) 1 All ER 942 and St. Pierre v. South American Stores, (1936) 1 K. B. 382.
11. The first suit is a simple suit for eviction and arrears of rent by a landlord against his tenant. I have carefully perused the plaint. The plaintiffs have not sued the defendant Radhey Shyam either as manager or coparcener of a joint Hindu family firm. Their suit, as framed, is in their individual names. Their plain allegation is that Radhey Shyam executed a rent note in favour of the two plaintiffs and he entered into possession of that shop as their tenant.
Prima facie it appears to me (it is not necessary to apply my mind fully or to give a decision there on today) that this suit will succeed or fail on the sole question whether or not it was on the basis of a tenancy between the parties to this suit that the defendant entered into the disputed shop. If the plaintiffs prove that issue, they get a decree for ejectment on the ground of forfeiture within the meaning of Section 111(g) of the Transfer of Property Act and, in that event, Section 116 of the Evidence Act will also come into play.
If they do not succeed in proving that issue, their suit will be dismissed without going into the question whether they are or are not the exclusive owners of the suit premises. It is certainly open to Radhey Shyam to contest the execution of the alleged rent-note and also, if it is otherwise permissible to contest the lease and to contest his own status as a lessee on the ground that the alleged rent note invalidates the lease or otherwise make it null and void, for example, by reason of fraud, misrepresentation, mistake, etc. Shiba Prasad v. Nilabji Bali, AIR 1947 Pat 45 may be referred to.
12. Shri Patankar has cited to me a decision reported in Ma Kyaw v. Daw Kye U, AIR 1935 Rang 355 where it is held:
'Where one party files a suit for recovery of possession and the opposite party files a counter suit in the same Court for declaration of title against the first party, the proper action for the Court is that, under the inherent powers of the Court, the hearing of the possessory suit should he stayed until the question of title to the land has been decided.'
After going through the report it is clear that it has no application to the present suit. There the 'possessory suit' was one under Section 9 of the Specific Relief Act and that was stayed because of a counter suit for declaration of 'title' having been filed by the opposite party in the same Court.
13. The other apprehension of Shri Patankar that if the first suit is decided against Radhey Shyam and a decree for ejectment is passed, it will operate as res judicata at least on principles, if not in terms, in the second suit seems to be misconceived. The second suit in the District Judge's Court is for partition of a joint Hindu family on the allegation that a coparcenary was constituted by the plaintiffs and the defendants in that suit. That controversy is foreign to the first suit. The parties are not identical. No adjudication against Radhey Shyam as to his status as tenant in the disputed shop can be of any avail in the second suit.
There, questions directly and substantially in issue are entirely different. In my opinion, the observations of their Lordships in Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33, which have, in the words of Shri Patankar, created a fear in the defendant's mind do not apply to this case. Here there is no question of adjudication by a special tribunal constituted under a special law. And if Section 11 of the Code of Civil Procedure is sought to be applied, the decision of the Privy Council in Run Bahadur Singh v. Mt. Lachoo Koer, ILR 11 Cal 301 and the decision in Mulji Sicka and Co. v. District Council. Bhandara, AIR 1945 Nag 171 may be referred to.
14. I also do not see any possibility of two conflicting decisions in the two suits, the nature and scope of which, and the controversies in which, are entirely different,
15. It is unnecessary for me to go into the question whether a decree for ejectment in the first suit against Radhey Shyam as the tenant will have any effect on his rights in the second suit. It is for the defendant to advise himself. But the observations of Sir George Rankin in the case of Bhurumal v. Jagannath, AIR 1942 PC 13 may be borne in mind:
'Where the managing member of a joint Hindu family advances loan to a junior member it is wrong to jump to the conclusion that what appears to be a loan is not in truth a loan because there is a joint business or some other joint property. In such cases the junior member upon a partition will be entitled to his share in the assets of the joint business which made the loan including the debt due from or money recovered from himself. There is no more paradox in this than already lies in the fact of the family or a firm having made him a loan. When a decree has been obtained against the junior member in respect of the loan advanced to him by the family, the property acquired by him out of the loan cannot be treated as joint property.'
If ultimately the Courts take the view that on the one hand Radhey Shyam is the tenant in the suit shop of the first suit and is also a co-owner of all the properties belonging to the alleged joint Hindu family, of which that shop is a portion, prima facie, I do not see any inconsistency; no one knows to which coparcener the disputed shop may be allotted on partition.
16. All the above considerations aside, I have also to see whether it will be laying down correct: law or a correct practice that a suit for eviction should be stayed just because a counter suit for declaration of title is instituted by the defendant of the ejectment suit. If that was permitted, every tenant will be able to continue his unauthorised stay on the rented premises and protract litigation just by instituting a suit for declaration of title to that property -- however imaginary and frivolous the title may be. That will lead to an absurd position and cannot be generally allowed. I do not see in this case any remarkable feature which can persuade me to interfere with the discretion exercised by the trial Judge. Since I am not satisfied that the continuance of the first suit will be an abuse of the process of the Court and since the injustice which will be caused to the plaintiffs by its stay is apparent, I hold that the defendant's application of August 6, 1957, has been rightly rejected.
17. This revision is, therefore, dismissed withcosts.