The interpretation of Section 10, Civil P.C., and its applicability to the present case.

Puranik, J—The defendant (applicant) by a karar kharedi which, he contends, is a mortgage by conditional sale, transferred certain fields to the plaintiff (non-applicant). Thereupon a co-occupant of the field claimed preemption. The present plaintiff and defendant were both parties to the suit. The latter in that suit had urged that there was no sale in favour of the former, Shridhar Ramchandra Kale, but there was a mortgage by conditional sale and that the lease deed that was executed by the present defendant (applicant) in favour of the said Shridhar Ramchandra Kale was a bogus transaction. The present plaintiff contested this position and stated that the transaction was a transaction of sale and not a mortgage by conditional sale and that the lease was not bogus as alleged by the present defendant (applicant). The defendant (applicant) failed in his contention in the Courts below. He has, therefore, preferred a second appeal which is pending in this Court as Second Appeal No. 623 of 1944. The question regarding the lease in question is also raised in the second appeal. While the second appeal is pending, Shridhar Ramchandra Kale instituted the present suit, out of which this revision arises, on the basis of the lease deed, claiming from the defendant (applicant) the amount due on the term of the lease deed. Inasmuch as the defendant (applicant) has contended in the previous suit that this lease was bogus and intended to secure his interest, and as the point as to lease is to be decided in the second appeal which arose out of the previous suit between the parties, he contended that the present suit should be stayed till the decision of the second appeal by the High Court, as the matter in controversy is the same. The lower Court declined to stay the suit stating in its order-sheet dated 10-7-1945 as under:

Parties as before. Stay application is rejected. As I am not inclined to stay as the appeal in High Court likely to get good deal of time. Issues framed. For settling date.

2. It is against this decision that the defendant has filed this revision. He applied for stay under Section 10, Civil P.C. Without deciding whether the application falls under Section 10 of the Code or not the Court rejected the application on the ground that there would be delay in the proceedings if it were to wait till the decision by the High Court. But if Section 10 is applicable to the present case the defendant is entitled to have the suit stayed irrespective of the fact whether delay results or not. The Court below has not at all considered the question of applicability of* Section 10 to the facts of the present case. It was argued before me that Section 10 does not apply to the facts of the present case as the subject-matter of the suit is different. Section 10 says:

No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in British India having jurisdiction to grant the relief claimed....

3. The section nowhere states that the subject-matter of both the suits must be the same, and in a Calcutta case reported in Sm. Jinnat Bibi v. Howarah Jute Mill Co. Ltd., 1932 AIR(Cal) 751, it was clearly pointed out that the section makes no reference to the subject-matter or the cause of action and that the test of the applicability of Section 10 to a particular case is whether on a final decision being reached in the previous suit such decision would operate as res judicata in the subsequent suit. If in the previously instituted suit it is held that this lease called in question is bogus and is intended to secure interest only that decision is bound to be res judicata, between the parties, inasmuch as this point was raised by the present defendant (applicant) as against the present pl