JUDGMENT :

Soumen Sen, J.

1. This appeal is arising out of an order dated 30th January, 2019 by which the application filed for stay of CS No. 152 of 2017 (hereinafter referred to as the “said application”) was dismissed.

2. The appellant is the defendant in Suit No. 152 of 2017.

3. The brief background of the said application is stated below:

4. The plaintiff filed a suit for eviction in 2010 before the learned City Civil Court against Shyam Engineering Company Pvt. Ltd. and Shyam Sel and Power Ltd., for recovery of an office space measuring about 2040 square feet more or less on the first floor of the premises situated at Ganesh Chandra Avenue, Kolkata (hereafter referred to as the “suit premises”). The plaintiff has prayed for eviction of Shyam Engineering Company Pvt. Ltd., inter alia, on the ground that the said tenant had sub-let the suit premises to Shyam Sel and Power Ltd. The suit decreed on 2nd September, 2015, on contest. Shyam Sel Ltd., preferred an appeal from such decree before a Division Bench of this Court, being FA No. 174 of 2016. By an order dated 13th July, 2016, the Division Bench granted unconditional stay of all further proceedings in the execution case for a period of two weeks, subject to the appellant/defendant depositing arrear rent up to June, 2016 at the rate of last paid rent together with the decretal cost in the executing court and continuing to pay occupational charges from July 2016 till the disposal of the appeal at the rate of Rs. 2,00,000/- per month with the learned Registrar General of this Court.

5. On or about July, 2017, the plaintiff filed the instant suit for recovery of mesne profits on and from 8th July, 2014 for the alleged wrongful occupation of the said premises. In the suit, the plaintiff claimed mesne profits at the rate of Rs. 13,000 per diem by reason of wrongful occupation since 2014 and interest thereon from 8th July, 2014 till 7th July, 2017 at the rate of 18% p.a.

6. In the plaint, it is alleged that the defendant continued in possession of the suit premises as a trespasser.

7. Before the commencement of trial the appellant filed an application for stay of the instant suit on the ground that the decision of the Hon’ble Division Bench in F.A. No. 174 of 2016 would operate as res judicata in the instant suit. In view of the pendency of the appeal, the defendant cannot be treated as a trespasser and accordingly, the plaintiff is entitled to recover any mesne profits during the pendency of the appeal. In other words, it was contended that the issue in CS No. 152 of 2007 is also directly and substantially in issue in the previously instituted suit between the same parties before the Hon’ble Division Bench and without there being an adjudication as to whether the defendant is a tenant entitled to protection under the West Bengal Premises Tenancy Act, 1997, the suit on mesne profits would be premature and not maintainable. The said application was dismissed by the learned Single Judge on the ground that section 10 of the Code of Civil Procedure, 1908 would not apply in the instant case as the matter in issue in the City Civil Court cannot be said to be the matter in issue in the instant suit. It appears that the appellant had further taken a plea before the learned Single Judge that the subsequent suit for recovery of mesne profits would be barred under Order 2 Rule 2 of the Code of Civil Procedure. This objection was also overruled by the learned Single Judge by relying upon the judgment of this Court in Santosh Kumar Ghosh & Ors. Vs. Sachindra Nath Mukherjee & Anr. reported at (1957-58) 62 CWN 759.

8. The application for stay of the suit was only on the aforesaid two grounds. However, in the appeal, the appellant had submitted that before the learned Single Judge it was argued that in any event the suit is barred under section 151 of the Code of Civil Procedure, and in support of such submission reliance was placed on a Division Bench judgment of our Court in Jugometal Trg Republike V