Raja Azlan Shah J:

On 3 February 1968 the appellant board filed a claim in the Sessions Court against the respondent for an order for ejectment. The respondent was employed as a watchman and in consequence of his employment and for the more effective performance of his duties he was allowed to occupy a portion of the school premises rent free. On 31 March 1967 his services were terminated. The board employed a new watchman in his place. The respondent was asked to vacate the premises. He refused to do so. The defence allege wrongful dismissal and aver that the respondent is seeking a declaration to that effect in the High Court. In a cross-action filed on 18 March 1968 in the High Court the respondent sought a declaration that the purported dismissal was ultra viresa nd null and void and that he continued to be and still continues to be employed by the board. There is also an alternative claim for damages for wrongful dismissal.

An application was then made by the respondent presumably under cl 2(1) of the Third Schedule to the Courts Ordinance, 1948 to stay the Sessions Court proceedings pending the outcome of the declaratory suit in the High Court. The ground in support of that application was that the Sessions Court had no jurisdiction to hear a declaratory suit if he were to file a counter-claim in the Court below. The learned president allowed the application on the following ground:-

The points to be decided in the High Court are similar to those raised in the Sessions Court. The defendant has in his statement of defence raised a triable issue that his purported dismissal was null and void and this same contention appears in the writ he had filed in the High Court when seeking a declaratory judgment to that effect."

I do not think the disputes which exist between the parties can possibly be decided by any hard and fast rule, such as that declared in Thomsonv. The South Eastern Railway Co. (1882), 9 QBD 320, 335. The principle there enunciated is based on the individuality of that ease: no attempt was made to give an exhaustive classification of the cases where the principle should be applied. Indeed, it would be wrong to do so. That seems clear from the following passage of Holker LJ at p. 335:-

In such a matter as this I cannot be confident, but it seems to me to be reasonable that the party to the litigation who has substantially everything to prove in it, and who would fail substantially unless the necessary evidence were produced, should be allowed to commence the proceedings at the trial, and to have the control of the action."

In that case Messrs. T brought an action for the balance of the price of a steamship built by them for the defendant company. In a cross-action commenced some three days later, the defendant company as plaintiffs claimed a return of all the monies paid to them by Messrs. Ton account of the steamship and damages. Upon the facts the burden of proof lay upon the defendant company. It was held that as the burden of proof lay upon the defendant company, the action brought by them should be allowed to proceed, Messrs. 7 should be at liberty to raise all questions by counter-claim and the action brought by them should be stayed.

I hold the view that a stay of proceedings is a matter of discretion and the Court must exercise its discretion as to what is the fairest mode, upon taking all matters into consideration of trying the several disputes which exist between the parties. In one case one consideration may have more sway, more cogency, and more effect than that same consideration, perhaps, may have in another. Putting it in another way, the Court must exercise its discretion whenever it is just and reasonable to do so.

It is clear that the respondent was a service occupant under a licence because he was required by the nature of his work to live there for the effective performance of his duties (see Ramsbottom v. Snelson [1948] 1 KB 473 and as such he has no right to remain on the