Anil K. Sen, J.
1. This revisional application at the instance of the plaintiff raises a short point as to whether the plaintiff's suit should be stayed pending an earlier suit brought by the defendant against the plaintiff. Such a stay had been granted by the learned Subordinate Judge, 2nd Court, Alipore, by an order dated Nov. 19, 1983, passed in Title Suit No. 37/81 and feeling aggrieved, the plaintiff has preferred the present revisional application. The application is being heard on notice to and on contest by the defendant.
2. The suit, which has been stayed by the impugned order, namely, Title Suit No. 37/81 (hereinafter referred to as the Alipore suit), is a suit for ejectment based on three-fold grounds contemplated by Section 13(1)(ff) (h) and (j) and (k) of the West Bengal Premises Tenancy Act and for mesne profits. The plaintiffs case shortly is that on the expiry of the tenure of a registered lease the defendant was allowed to occupy the suit premises as a monthly tenant for residential purpose with effect from Nov. 1, 1978, for a period of one year. The defendant agreed in writing that he would vacate the suit premises on the expiry of Oct. 31, 1979, and on Jan. 16, 1979, the defendant also gave a notice to quit on the expiry of Oct. 31, 1979, but he has failed to deliver vacant possession of the premises in terms of the said agreement and even on the expiry of the notice so given by him. The plaintiff further made out a case of reasonable requirement for his own use and occupation and also pleaded wrongful user of the premises by the defendant for a purpose other than residential purpose. Based on those three grounds the plaintiff instituted the aforesaid suit after service of two notices dated June 13/14,1980 and Sept. 25, 1979. He claimed eviction and for mesne profits.
3. The defendant in the above suit along with another in their turn obtained leave under Clause 12 of the Letters Patent and filed a suit in the Original Side of this Court being O.S. No. 583/80 (hereinafter referred to as the Original Side suit) against the plaintiff. This was filed earlier in point of time and is a suit for declaration and injunction. The case made out by the plaintiffs of the Original Side suit is to the effect that the plaintiff No. 1 was lawfully inducted as a monthly tenant of the suit premises; that the plaintiffs were made to execute a document dated Jan. 16, 1979, under undue influence, coercion and duress; that relying upon such a void document, the defendant-landlord served a notice through his solicitor dated June 13/14, 1980, which was neither valid nor binding upon the plaintiffs and that the landlord was further guilty of committing acts of nuisance and obstruction to the plaintiffs' beneficial use of the suit premises. Hence, the plaintiffs of that suit prayed for a declaration that the document dated Jan. 16, 1979, and the notice dated June 13/14, 1980, are void or being voidable, should be cancelled, for permanent injunction restraining the landlord from interfering with the supply of essential services and from committing any nuisance.
4. So far as the Original Side suit is concerned, it is obvious that it was so brought to forestall the suit for eviction and was instituted on July 8, 1980, that is, just after the landlord's notice dated June 13/14, 1980. It was a suit substantially for a declaration of tenancy right in an immoveable property situate beyond the original jurisdiction of this Court and this Court on an application by the landlord-defendant by an order dated May 4, 1981, revoked the leave under Clause 12 of the Letters Patent and directed the plaint to be returned. Though an appeal has been preferred against the said order and an order staying operation of that order had been obtained, in these three years the appellant has not had the appeal heard or disposed of. It is obvious that it is not to their interest to do so as long as the suit against them can be kept stayed on the ground of their continuing a suit filed at an earlier point of time in an inappropriate Court. Be that as it may, we shall proceed on the basis that the Original Side suit is now pending and it the mandatory provision of Section 10 of the C.P.C. can be invoked, there can be no alternative to staying the ejectment suit.
5. But in our considered opinion, Section 10 of the Code on its terms does not apply to the present case in view of the subject-matter involved in the two suits. The learned Subordinate Judge in directing stay under Section 10 of the Code has taken the view that, since one of the issues, which would arise for consideration in both the suits, namely, whether the notice dated Jan. 16, 1979 to quit given by the defendant is legal, valid and binding on the defendant or not, the subsequent Alipore suit should be stayed. We, however, find that the learned Subordinate Judge made a grievous error in assuming jurisdiction under Section 10 of the Code which he had none to make such an order on a clear misreading of the said provision of the Code. In order to attract Section 10 of the Code the subject-matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. In that way the subject-matter of two suits must be identical. Merely because one of the questions in issue is the same as in the other suit, would not make the subject-matter identical. It was Sir Ashutosh Mookerjee who pointed out in Bepin Behari v. Jogendra Chandra, AIR 1917 Cal 248, that the matter in issue' is not equivalent to 'any of the questions in issue', it means the entire subject-matter in controversy. This view has been consistently followed by this Court vide Narendra v. Wallamji, (1971)75 Cal WN 1010, Jugo Metal Trading Republike v. Rungta & Sons, : AIR1966Cal382 , and Shaw Wallace v. Bholanath, : AIR1975Cal411 (The observation of Chakravarti, C.J. in Shorab M. Modi v. Mansata Film Distributors. : AIR1957Cal727 , being otherwise explainable as not laying down any contrary view).
6. Applying the correct test, we are unable to hold that the two suits involve the same subject-matter or even that the principal issue involved in both the suits is identical. The Alipore suit, which has since been stayed, is a suit for ejectment on three-fold grounds, namely, (i) reasonable requirement, (ii) wrongful user of residential premises for non-residential purpose and (iii) the tenant agreeing in writing to vacate and then giving a notice to quit on his own. The suit may succeed on any of the grounds being made out. Only the validity of the notice dated Jan. 16, 1979, which is the basis of the third ground as aforesaid, is being challenged in the Original Side suit the subject-matter whereof is totally different, namely, declaration of the tenant's right as tenant notwithstanding such notice and injunction for prevention of obstruction to the beneficial use of the tenancy and avoidance of nuisance. The learned Subordinate Judge may be right in holding that one of the issues that may arise for consideration in both the suits with regard to the validity of the notice dated Jan. 16, 1979, may be identical. But that does not make the subject-matter in issue in both the suits identical nor, on the facts and circumstances of the case can it be said that that is the principal issue in the Alipore suit It is, therefore, difficult for us to hold that the subject-matter in issue in the Alipore suit is directly and substantially in issue in the Original Side suit. We have pointed out already that the Alipore suit may succeed even if the disputed notice fails resulting in failure of one of the grounds. Even if we judge it from another stand point, namely, as to whether the decision in the Original Side suit would clearly bar the Alipore suit on principles of res judicata or not, we are not in a position to hold that it would be so. Hence, in our view, Section 10 of the Code could not have been invoked and the learned Subordinate Judge in invoking such a provision was really acting in illegal and irregular exercise of his jurisdiction, if not totally beyond his jurisdiction. Such an order would cause material prejudice to the plaintiff of the Alipore suit as his suit would unnecessarily and indefinitely be stayed as a result of such an order.
7. We are conscious of the position that the court has still power to stay a suit even without taking recourse to Section 10 of the Code, but such power is a discretionary power and is not a mandatory provision like Section 10. But in the facts and circumstances of the case and particularly in view of the wider scope of the Alipore suit, we do not think that it would he just and proper for any court to use its discretion and direct stay of the Alipore suit. It is more so when we find that the earlier suit was really intended to forestall the present suit and had been deliberately filed in an inappropriate Court to prevent analogous hearing of both the suits which we would have otherwise directed.
8. In the result, the revisional application succeeds and is allowed. The impugned order for stay of the suit dated Nov. 19, 1983, passed by the learned Subordinate Judge is set aside. The learned Subordinate Judge is directed to proceed with, the hearing of the suit.
9. The petitioner is entitled to costs of the hearing of this revisional application and we direct accordingly, hearing fee being assessed at 10 (ten) gold mohurs.
10. Let this order be communicated to the Court below forthwith.
Sudhir Ranjan Roy, J.
11. I, agree.