Status of defendant as tenant or trespasser in that appeal.

This revision petition arises: out of the order in I.A. No. 150 of 1971 in O.S. No. 10 of 1969 wherein the Subordinate Judge of Erode has stayed the suit, O.S. No. 10 of 1969, under section 10, Code of Civil Procedure. The facts of the case are: Prior to the filing of O.S. No. 10 of 1969 wherein I.A. No. 150 of 1971 has been filed, the petitioner herein filed O.S. No. 222 of 1966 on the file of the Court of the Subordinate Judge, Erode. In that suit, the petitioner herein claimed damages from the respondent herein for the year 1960-61. That suit was decreed for Rs. 12,320 against the respondent herein. The respondent herein preferred A.S. No. 838 of 1968 on the file of this Court and the same is pending. The main contention of the respondent herein in that appeal is that he is a tenant and as such there is no question of claiming any damages from him as a trespasser. But, on the other hand, the petitioner herein asserts that the respondent is a trespasser and is liable to pay damages. Mr. Venkatavaradachariar, learned Counsel appearing for the respondent submits that if it is held that his client is a tenant, different consequence will follow and as such the question as to whether his client is a tenant or a trespasser is the main issue in both the suits, O.S. No. 10 of 1969 and O.S. No. 222 of 1968 and the decision in both the suits depends upon the decision on the aforesaid main issue. Mr. Sengottian, learned Counsel appearing for the petitioner, cited before me Bhola Prasad v. Srimathi Jagpala1. That is a case in which rents were claimed for successive years after they had become due. In those circumstances, it has been held that the subsequently instituted suit for rent cannot be stayed under section 10, Code of Civil Procedure, in view of the fact that the previous suit in which a decree for rent has been passed, is the subject-matter of appeal before the appellate Court. I do not think there is any difficulty in accepting that proposition. However, the said decision cannot be made applicable to the facts of the present case, since in the present case the main question that has to be decided is as to whether the respondent herein is a tenant or a trespasser.

1. A.I.R. 1955 All. 414.

2. The next case cited by Mr. Sengottian is Manohar Lal v. Seth Hiralal1. In that decision Order 39, rules 1 and 2 and also section 10, Code of Civil Procedure, were discussed and the question as to whether the Court can invoke its inherent jurisdiction under section 151, Code of Civil Procedure, to grant the relief of injunction was also discussed. The Supreme Court held that the Court can grant injunction in appropriate cases, but when there is specific provision such as section 10 of the Code of Civil Procedure, available, the Court cannot invoke its inherent jurisdiction to stay a suit. Mr. Sengottian is not able to show that this decision applies to the facts of the present case. I am of the opinion that this decision has absolutely no relevancy to the facts of the present case.

3. The next decision cited by Mr. Sengottian is Life Pharmaceuticals v. B. M. Hall2. In that decision, the Calcutta High Court has held:

“In my opinion, the test to be applied in deciding an application under section 10 of the Code of Civil Procedure, is whether the matter in the later suit will be res judicata if the prior suit is taken to have been decreed in the manner as prayed in the plaint. In such circumstances, it will matter little that no written statement has been filed in the earlier suit. If the above test is applied in the present case before me the position will be like this viz., that in the first suit before the Munsif’s Court at Alipore, if adecree will be deemed to be passed that will be possible only on the basis of the said agreement being a valid and an enforceable one. Such will be the case also in respect of the second and the third suits. As such it will be idle on the part of the plaintiff-company to agitate this point regarding the in