JUDGMENT
G.C. Gupta, J.
1. This revlslonal application is directed against an order dated 28.9.2001 which the learned trial Court has passed an order staying Title suit No. 23 of 1999 till disposal of previously instituted suit being Title suit No. 65 of 1982. The facts of the case briefly stated are as follows:
2. The suit of 1982 is for recovery of possession and mesne profits from the tenant-defendant S.N. Agrawala, since deceased, on the ground of default and acts contrary to the provisions of Clauses (m), (o) and (p) of Section 108 of the Transfer of Property Act. It is alleged that for the reasons aforesaid the tenancy of S.N. Agrawala since deceased, was terminated under Section 13(6) of the West Bengal Premises Tenancy Act. 1956 by a notice dated 26.4.1980. The tenant raised disputes with regard to quantum of rent payable by him and applied under Sections 17(2) and 17(2A) of the West Bengal Premises Tenancy Act. 1956 contending that he was liable to pay rent only at the rate of Rs. 1050/- per month. The said application was disposed of by an order dated 3.6.1993 by which the learned trial Judge held that the rent payable is respect of the demised premises was Rs. 1500/- per month. An opportunity was also granted to the tenant to pay the arrears by easy instalment. The tenant came up before this Court in revision against the said order dated 3.61993 which was registered as C.O. 1600 of 1993. During the pendency of the said revisional application before this Court the tenant S.N. Agarwala died on 8.8.1996. Heirs of S.N. Agrawala were substituted in the said pending revisional application by an order dated 24.4.1998 and by a further order dated 30.10.1998 the revisional application was disposed of by keeping Intact the order passed by the learned trial Judge with liberty to the tenant to challenge the propriety of the said order during the hearing of the suit.
3. Prior to 24.4.1998 the plaintiffs had also applied on 9.1.1998 for substitution of the heirs of S.N. Agarwala in the suit. By an order dated 10.2.1999 the learned trial Judge however dismissed the application for substitution on the ground that it was filed out of time and recorded a formal order that “the suit of the plaintiff is hereby abated”. On 10.2.1999 the plaintiff applied for setting aside the abatement. During the pendency of this application the heirs of S.N. Agarwala filed title suit No.23 of 1999 on 3.5.1999 claiming the following reliefs:
“A. A declaration that the plaintiffs are monthly tenants in respect of the suit premises more filly described in the schedule hereunder and further that the monthly rent is Rs. 1050/- payable according to English Calendar month;
B. Permanent Injunction restraining the defendants and their successors-in-interest from claiming or demanding rent in respect of the suit premises at any rate other than Rs. 1050/-per month;
C. Alternatively, the rate of monthly rent payable by the plaintiffs in respect of the suit premises be adjudicated upon by this learned Court and directions be given for payment of rent in respect of the suit premises at such rate and for such period as this learned Court may be pleased to determine upon investigation and adjudication.”
4. The aforesaid suit of 1999 was filed on the ground that the suit for eviction had abated as recorded in the order dated 10.2.1999 and the orders passed in the said suit under Section 17(2) of the West Bengal Premises Tenancy Act, 1956 directing the tenant to pay Rs. 1500/- per month on account of tenancy had ceased to exist.
5. By an order dated 7.4.2001 the application for setting aside abatement, made in the suit of 1982 was dismissed against which an appeal was preferred before the learned District Judge which has been registered as Appeal No. 3109 of 2001. The appeal was admitted by an order dated 27.6.2001. The said appeal is still pending.
6. After admission of the said appeal the plaintiff/land lord in Title suit No. 65 of 1982 made an application for stay of the suit filed, under Section 10 of Code of Civil Procedure, by the heirs of the tenant being Title suit No. 23 of 1999. The learned trial Judge by the Impugned order allowed the application under Section 10 of the Code of Civil Procedure and stayed Title suit No. 23 of 1999 until the disposal of the previously instituted suit being title suit No. 65 of 1982. The heirs of the tenant have come up before this Court challenging the order of stay of the Title suit No. 23 of 1999.
7. Mr. Mitra learned counsel appearing for the heirs of the tenant/ petitioner submitted that as on the date when the Title suit No. 23 of 1999 was filed the suit for eviction was not pending. An order of abatement had been passed on 10.2.1999 with regard to the suit for ejectment and the present suit for declaration of tenancy was filed on 3.5.1999. Relying on the case of (Natmuddin Biswas and Ors. v. Mantraddin Laskar and Ors) reported in 32 CWN 299 he submitted that “an order of abatement is virtually a decree and, so long as it stands, must be considered to have determined the rights between the parties.”
8. He further submitted that the learned trial Judge was clearly wrong in holding that an appeal against an order refusing to set aside abatement is continuation of the Title suit No. 65 of 1982. He further submitted that there was no order staying the operation of the abatement of the suit No. 65 of 1982.
9. Mr. Talukdar, counsel appearing for the landlord submitted that the chances of success in the pending appeal were very bright considering the law laid down by Their Lordships in the case of (Rangubat Kom Sankar Jagtap v. Sunderabal Bharatar Judhe and Others ) where Their Lordship held as follows:
“An appeal was filed against an Interlocutory order made in a suit pending the appeal the defendant died and his legal representatives were brought on record. The appeal was dismissed. The appeal being a continuation or a stage of the suit, the order bringing the legal representatives on record would ensure for the subsequent stages of the
suit This would be so whether in the appeal the trial Court’s order was confirmed, modified or reversed.”
1O. He further submitted that a decree in the previously Instituted suit will wholly non-suit the plaintiffs in the subsequent suit. His next submission was that even if the requirement of Section 10 is not strictly fulfilled. Court had Jurisdiction to stay the suit under Section 151 of the Civil Procedure in an appropriate case and for this proposition he relied on the case of (Jugometal Trg Republike v. Rungla and Sons (Private) Ltd, which held as follows:-
“Although Section 10 of the Code of Civil Procedure is not applicable, in our opinion, there should be a stay under Section 151 of the same Code and it is clear that the learned trial judge made an order for stay under this section. This section recognises that the Court has very wide powers of regulating the procedure and conduct of litigation in cases where the evil complained of or injury apprehended cannot be avoided by exercise of powers expressly conferred under the different provisions of the Code. As has been said in many cases, this power is to act ex debito justitiae and to do real and substantial justice for the administration of which alone the Court exists. Even if the case is not covered by the express provision of Section 10 of the Code we must see whether an order for stay ought to be made in the interest of justice without curtailing the rights which the litigant has to seek redress in Court. In this case if the appeal from the decree in the admiralty suit succeeds the trial of the present suit for the major of the claim made will be avoided. There can be little doubt that if the present suit is allowed to go not only will discovery and inspection have to be made but the actual trial will be spread over days necessitating the examination of a number of witnesses on either side and arguments on various points. This unnecessary expense and hearing of the suit at some length will be avoided if the pending appeal succeeds,”
11. In my view, there is substance in the submission of Mr. Talukdar. If the suit filed by the landlord is decreed the prayers made by the heirs of the tenant would stand nugatory. Therefore this is a case where an order staying the subsequent suit filed by the heirs of the tenant is more than Just. The pending appeal against the order refusing to set aside abatement may not be a continuation of the suit but is certainly a stage in the suit and so long the appeal is pending, one cannot say that the existence of the suit has been completely extinguished. If the suit filed by the heirs of the tenant is allowed to proceed the claims and contentions of the landlord in the previously Instituted suit may become resjudicata. This is, therefore, all the more reason why I should not Interfere with the pre-eminently just order passed by the learned trial Judge. I am supported in my view by a decision of the apex Court in the case of (P.V. Shetty v. B.S. Giridhar,) . Ion that case “the appellant claiming to be a tenant on a monthly rent of Rs 650/- filed an application before the Rent Controller for fixation of fair rent The accepted position was that the appellant would be entitled to the protection of the Karnataka Rent Control Act only if fair rent was fixed at Rs.500/- or below per month and if other Ingredients of expression ‘tenant’ were satisfied. The respondent landlord
thereafter filed a suit for eviction on the ground that tenancy of the appellant was determined and he was not entitled to protection of Rent Act. The appellant moved an application for an Interim stay of further proceedings in the suit till the disposal of the application pending before the Rent Controller. This application for the stay was rejected and a revision petition to the High Court also failed.”
12. The apex Court held that “If the stay is not granted and the suit proceeds and results in eviction the application for fixation of fair rent which preceded the filing of the suit, becomes infructions, On the other hand if the application for fixation of fair rent is allowed holding that the appellant is a tenant as understood under the Rent Act, and the fair rent is Rs 500/- or less per month he would be entitled to the protection of the Rent Act which determination will have Impact on the suit, subject, of course, to other contentions that may be raised in the suit. Therefore, the just and fair approach, balancing the equities would be to stay further hearing of the suit till the application for fixation of fair rent is decided.”
13. For these reasons I am unable to Interfere with the impugned order. Accordingly this application falls and is dismissed. There will be no order as to costs.