1. By this rule the opposite party was called upon to show cause why the order complained of should not be set aside and the hearing of the suit instituted against the petitioner stayed pending the disposal of the appeal mentioned in para. 7 of the petition to this Court or why such other order should not be made as this Court should seem fit and proper. It appears that since this rule was issued the appeal referred to therein has been dismissed. It further appears that the petitioner has preferred a second appeal to this Court and that the appeal to this Court has been admitted and is now pending. In these circumstances the petitioner has by a further application prayed that the scope of the rule be extended so as to cover the second appeal now pending in this Court.
2. The petitioner's prayer to the trial Court was that the suit be stayed till the final disposal of the previous suit and the rule is directed against the order of the trial Court rejecting this prayer. In 'the original application to this Court the order complained of was the order by which the trial Court rejected the petitioner's prayer for the stay of the suit and the rule asked for in that application was a rule to show cause why the hearing of the suit should not be stayed pending the hearing of the previous suit. ..The rule actually issued was however as has been stated above a rule to show cause why the hearing of the suit should not be stayed pending the disposal of the appeal mentioned in para. 7 of the petition, namely, the appeal which was then pending in the Court of the Additional District Judge. In these circumstances and having regard to the fact that the question to be decided is a pure question of law, that all the parties concerned and all the necessary materials are now before this Court, and especially having regard to the fact that the provisions of Section 10, Civil P. C., are mandatory and leave no discretion to the Courts in respect of the stay of suits when the circumstances are such as to invoke the operation of that section, I am of opinion that the prayer now made on behalf of the petitioner should be granted and that this rule should be regarded as having been modified in this sense, that for the words 'appeal mentioned in para. 7 of the petition to this Court' should be substituted the words 'appeal now pending in this Court.' This order will also govern the similar applications which have been filed in respect of the other 11 connected rules.
3. Coming to the merits of the ease, it appears that by the order complained of the trial Court has rejected the petitioner's prayer for stay on the ground that Section 10, Civil P. C., does not apply. The learned Munsif found that the suits were between the same parties litigating under the same title but was of opinion that the matter in issue in the two suits was not directly and substantially the same for the reason that the subject-matter and the causes of action were different. In arriving at this decision the learned Munsif has in my opinion read into Section 10 something which is not there, in so far as that section contains no reference whatever to the subject-matter or the cause of action. The real matters in issue in both suits are clearly these specified in para. 3 of the petition viz.:
(a) Have the plaintiffs acquired the sixteen annas interest in the dispute lands ?
' Are the defendants monthly tenants and have they acquired the right of occupancy in the lands ?
there being no dispute regarding the rate of rent or the fact that the rents were in arrears. One test of the applicability of Section 10 to a particular case is whether on the final decision being reached in the previous suit such decision would operate as res judicata in the subsequent suit and there can be no doubt that if this test is applied Section 10 must be held to be applicable to the present case. The terms of the section are perfectly clear and if the decision on which the learned Munsif relied are carefully examined it will be found that there is nothing in those decisions to throw any doubt on the applicability of the section to the present case. The learned Advocate appearing on behalf of the opposite party has conceded (and in so doing he has in my opinion acted very properly), that Section 10 does apply to the present case. He has at the same time requested that the hearing of the appeal now pending in this Court be expedited.
4. In these circumstances the rule is made absolute in this sense that the hearing of Title Suit No. 253 of 1931 instituted against the petitioner and now pending in the Second Court of the Munsif at Howrah is ordered to be stayed pending the disposal of the appeal arising out of the previous suit and now pending in this Court. This order will also govern the other eleven connected rules, namely, Nos. 1418 to 1428 of 1981. The petitioners in these cases are awarded their coats; the consolidated hearing fee for all these rules being assessed at two gold mohurs to be divided equally amongst the petitioners. The hearing of the connected second appeals now pending in this Court should be expedited.