JUDGMENT
N.K. Jain, J.
1. This revision petition is directed against the order of learned Civil Judge, Nagaur dt. 17.9.90 whereby he has allowed the application Under Section 10 and 151 C.P.C. filed by the non-petitioner and stayed the proceedings of civil suit No. 11/79.
2. Brief Facts of this case are that the petitioner purchased the disputed house from Badridas for Rs. 6000/-. Which was under mortgage with one Kishanlal Sita Ram who gave it to Raja Ram, the non-petitioner on rent 68/- per month. The petitioner paid full amount of the mortgager. He had also given notice to the tenant Raja Ram to vacate the house but Raja Ram did not vacate the house. Thus, the plaintiff filed a suit No. 11/79 on 1.6.79 for eviction against the non-petitioner Raja Ram. Brothers of Badridas being aggrieved by the sale of house to Sheeyam Sunder filed a suit No. 24/82 for partition as the same could not be sold by Badridas alone as the house is ancestral one. They have also prayed that Raja Ram should be declared as their tenant and rent should be paid to them. Raja Ram, the non-petitioner filed an application Under Section 10 and 151 C.P.C. praying that the suit filed by Sheeyam Sunder for eviction against him be stayed, till the suit No. 24/82 for partition is decided. The learned civil Judge vide his order dt. 17.9.1990, stayed the suit No. 11/79 till the decision of suit No. 24/82 pending before Addl. Dist. Judge, Nagaur. Hence, this revision petition by Sheeyam Sunder.
3. Learned Counsel for the petitioner has submitted that the learned trial court while observing that Section 10 C.P.C. is not applicable has erred in staying earlier suit invoking Section 151 C.P.C. relying on the decision of this Court in Hiralal v. Mangilal 1952 R.L.W. 460. Mr. S.K. Vyas, learned Counsel for the non-petitioner has submitted that there is no error in the order and has placed reliance on Hiralal v. Mangilal 1952 R.L.W. 460 and Wat. Lumipi Bibi v. Zamir All Shah A.I.R. 1920 Allahabad 70.
4. I have heard learned Counsel for the parties and perused the case law.
5. In Hiralal v. Mangilal (supra) it has been held that the court can, in the exercise of its inherent powere, stay a suit, pending decision of another suit, even though Section 10 C.P.C. may not be applicable. In Wat. Lumipi Bibi v. Zamir All Shah A.I.R. 1920 Allahabad 70, the defendants against the appeal pending another suit by heir as creditors against a decree-holder raising the same question stay of suit held justified.
6. In Mohan Chandra Deka v. Smt. Himani Talukdar A.I.R. 1985 Gauhati-62 it has been observed that recourse to Section 151 would be justified when Section 10 cannot be invoked. It has also been observed that the provisions of Section 10 are clear, definite and mandatory. A court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. Where there is special provisions in the C.P.C. for dealing with the contigencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified.
7. In Minocher Bohramji Damania v. Hema N. Dadachanji and Ors. it has been observed that requisite conditions for stay of suit under Section 10 C.P.C. not fully satisfied, the court cannot exercise its inherest powers under Section 151 to grant stay.
8. In Mirta Una Pr. Ltd. v. The Finlay Mills Ltd. , it has been observed that while first suit was patently a title suit, in second suit a claim for money was made and, therefore, the matters in issue were not substantially the same as to attract Section 10. It has also been observed that under Sections 10, 151 and Order 39 the power of Court to restrain party from proceeding with suit in another suit, suit sought to be stayed under Order 39 not found to be vexatious or an abuse of process of Court. Neither Order 39 nor court’s inherent powers Under Section 151 can be invoked to stay suit.
9. In Cottom Corporation of India v. United Industrial Bank Ltd. it has been observed that under Section 151 and Order 39, power cannot be invoked to nullify provision of Section 41(b) of the Specific Relief Act.
10. In ManoharLal Chopra v. Rai Bahadur Rao Raja Seth Hiralal it has been held that the inherent powers are to be exercised by the court in very exceptional circumstances, for which the Code lays down no procedure and further held the question of issuing an order to a party restraining it from proceeding with may other suit in a regular constituted court of law deserves creat care and consideration and such an order is not to be made unless absolutely essential for the ends of justice.
11. On discussing above case law, the position of law emerges is that the power of court to grant temporary injunction is limited to the provisions of Order 39 C.P.C. and Section 151 C.P.C. cannot be invoked to add to the powers expressly conferred by 0.39, merely because it is in accordance with equity. The powers under Section 151 C.P.C. to grant stay can be exercised only when all the conditions laid down in Section 10 C.P.C. exist. But, it deserves great care in staying an order, and the same is not to be made unless it is necessary for the ends of justice.
12. In the instanet case the suit between plaintiff petitioner and non-petitioner tenant Raja Ram, has been filed on 1.6.1979 for eviction and possession where as case No. 24/82 persins to parbiting pending between brothers of Badridas and sheeyam Sunder, the petitioners. In both the cases, cause of action are different and issues are also different and all the parties are not common. Moreover, the non-petitioner Raja Ram has nothing to do with the partition suit No. 24/82. Under, these circumstances, the injunction order is not based on any such principle enumerated by their lordships of the Supreme Court in Mahoharlal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (supra). That apart in the present case the court has granted injunction staying previous suit. The scope of revision is limited one and this Court can only interfere in the revisional jurisdiction; if the said Judge had no jurisdiction to make the order it has made or if the trial court had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision. As discussed above in the present case there is no special circumstances nor it would serve the ends of justice by staying the previous suit and the non-petitioner has not been able to satisfy on the ground of nullity making justification the order staying earlier suit, pending in the court of civil Judge, Nagaur and the case law cited by the learned Counsel for the nonpetitioner is not applicable to the facts of the present case. Therefore, the trial Court has acted illegally in staying previous suit No. 11/79 pertaining to eviction on the basis of suit No. 24/82 relating to partition, by invoking the provisions of Section 151. Thus, in my opinion, the impugned order is liable to be set aside in the revisional jurisdiction.
13. In the result, this revision petition is allowed. The order dt. 17.9.1990 passed by learned Civil Judge is set aside.