D. Chatterjee, J.
1. The petitioners and the opposite party hold two contiguous collieries under the Maharaja, of Pachete. The Maharaja brought a suit No. 391 of 1910 in the Court of the Subordinate Judge of Burdwan against the opposite party for the recovery of extra royalty for coal said to have been appropriated by him by encroaching on the lands of the colliery of the petitioners, who were made pro forma defendants. The claim was based on the terms of the contract entered into by the opposite party with the Maharaja. In that suit the opposite party pleaded that the encroachment, if any, was made not by him but by his vendor who was not a party to the said suit. One of the issues in that suit was whether the opposite party had made any encroachment on the lands of the petitioners and the Court found that they had. Pending the decision of that suit the petitioners brought the present suit in the same Court against the opposite party as defendant No. 1 and his vendor as defendant No. 2 for damages for the encroachment found in the previous suit as well as further encroachment and loss caused by flooding the petitioners' mine and other reliefs. The opposite party also filed a suit against the petitioners making counter-charges of encroachment. These two fresh counter-suits were ordered to be tried together. The opposite party then made an application under Section 10 of the Civil Procedure Code for stopping the suit of the petitioners and the learned Subordinate Judge has passed an order which has the effect of stopping the trial of the petitioners suit for an indefinite, time whilst the opposite party is at liberty to proceed with his suit against the petitioners. The petitioners obtained this Rule on the ground that the order was incompetent, illegal and irregular. I think that the order made by the learned Subordinate Judge ought not to stand. Section 10 of Civil Procedure Code requires among other things that the suits should be between parties litigating under the same title. The Maharaja was suing in the previous suit as landlord for royalty under contract and the present suit is by one tenant of the Maharaja against another and based on tort. Then again the issue can hardly be said to be the same, as the encroachment charged in this suit covers a larger area than that found in the prior suit. This is quite sufficient to take the case out of the purview of Section 10, but the learued Subordinate Judge says he is clearly of opinion that the decision in the previous suit would operate as res judicata between the two defendants in that case and would therefore bar this suit. I do not think it proper to express any opinion on this point at this stage of the case and the learned Subordinate Judge was not called upon to express the opinion that he has expressed in this connection in a proceeding under Section 10.
2. It is contended by the learned vakil for the opposite party that we cannot interfere with the order of the Court below as it does not violate any rule of jurisdiction. Reliance is placed on the decision of the Privy Council in the case of Amir Hassan Khan v. Sheo Baksh Sing (1884) I. L. R. 11 Calc.6. It is also contended that the case has not been decided and we have no jurisdiction to interfere with an interlocutory order.
3. As regards the question of jurisdiction, I feel no difficulty. The learned Subordinate Judge had no jurisdiction to decide the question of resjudicata in a proceeding under Section 10. His only jurisdiction in this proceeding was to stop the new suit if he found the existence of the circumstances mentioned in the Section as conditions precedent to the passing of the order. He has come to no fiuding as to whether the parties were litigating under the same title. If he had come to a finding right or wrong that would have been, another matter; but he has come to none and 1 think he had no jurisdiction to pass the order; but supposing ho had the jurisdiction, he has exercised it in violation of the provisions of the law and under a misapprehension of the questions at issue, and has therefore acted with material irregularity in the exercise of his jurisdiction: see Venkubai v. Lakshman (1887) I. L. R. 12 Bom.617. Sew Bux Bogla v. Shib Chunder Sen (1886) I. L. R. Calc. 225. Jugobundhu Pattuck v. Jadu Ghose (1887) I. L. R. 15 Calc. 47. Tarini Charan Banerjee v. Chandra Kumar Dey (1910) 14 C. W. N. 788.
4. As regards the second objection there is ample authority in this Court for our interference with interlocutory orders when they might lead to failure of justice or irreparable injury; see Dhapi v. Ram Pershad (1887) I. L. R. 14 Calc. 768. Gobinda Mohan Das v. Kunja Behary Dass (1909) 14 C. W. N. 147. Amjad Ali Hussain Johar (1910) 15C. W. N. 353. Even if it were doubtful whether Section 115 does empower its to interfere in a case of this kind, I think that our powers under Section 15 of the Charter Act are wide enough to enable us to do justice. In this case the opposite party may go on encroaching on the petitioner's land, he may flood the petitioner's mine or even let down the surface and make investigation impossible, and yet the petitioner would not have a word to say until the previous suit is finally decided years Later, when investigation may be impossible, when evidence may have disappeared and when a decree may be nugatory: and while the petitioners are thus handicapped by the order of the Court, the opposite party may run his own suit against the petitioners unhampered by either the suit of the Maharaja or the suit of the petitioners. I cannot conceive of a greater injustice and I have no hesitation in setting aside the order of the learned Subordinate Judge and making the rule absolute with costs.