Narayan, J.

1. This application is directed against an order of Mr. C. B. Mitra Munsif, Patna, rejecting the prayer of the defendant in Money suit No. 10 of 1951 pending before the Learned Munsif, for staying the further proceeding in the case or in the alternative for deciding the issue regarding the maintainability of the suit as a preliminary issue in the case.

2. The facts relevant for our present purpose are that the defendant petitioner is occupying a flat in a house belonging to the opposite party as a tenant on the 10th of January 1951 he filed a petition before the Rent Controller for the fixation of fair rent for the portion of the building in his occupation. On the same date the opposite party instituted a suit for the recovery of arrears of rent with regard to the building in the occupation of the petitioner. A day before, that is, on 9-1-51 the opposite party had filed an application before the Controller for the eviction of the petitioner from the building and it has been pointed out that this petition for the eviction of the petitioner was filed after a notice had been served on the opposite party for the fixation of fair rent. It appears that a proceeding un