Section 10 of the Code of Civil Procedure does not apply when the subject matter of the two suits is not identical.

( 1 ) THIS revisional application at the instance of the plaintiff raises a short point as to whether the plaintiffs 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 S. 13 (1) (ff), (h) and (j) and (k) of the West Bengal Premises Tenancy Act and for mesne profits. The plaintiff's 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 Cl. 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 plaintiff's 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 Cl. 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