JUDGMENT - A.N. MODY, J.:---This revision application arises out of a judgment in the City Civil Court Suit No. 583 of 1975 dated 16-3-79 staying the said suit under the provisions of section 10 of the Civil Procedure Code. This stay was granted not on any notice of motion taken out as is usually done but was granted after framing a preliminary issue at the hearing of the suit as to whether the suit should be stayed under the provisions of section 10 of the Civil Procedure Code. As I am deciding this application on merits I do not propose to go into the question whether such a stay can be granted without a separate application. I must also point out that there is no pleading and so no issue framed as to whether the stay should be granted in exercise of the inherent powers under section 151 of the Civil Procedure Code. However, as this point has been argued in detail by both sides and without any objection on behalf of the plaintiff as to want of pleadings or issue I will deal with this point also. 2. Sometime in the year 1959 the plaintiff had given to the defendant its business of vulcanizing and battery charging carries on in the name and style of "Kingsway Garage" in shop No. 2 on the ground floor of a building which was then known as "Kingsway Chambers" and now known as "Kalyan Bhawan" situate at King's Circle on what is described as conducting basis under a written agreement. The agreement between the parties was renewed from time to time by written agreements, the last of such agreement being dated 1-4-1970. It would appear that there were litigation between the present defendant as defendant and Shashikant N. Shah and another as plaintiffs being S.C. Suit No. 56 of 1972 in which a Court Receiver was appointed. An application was made by the present plaintiff for possession which was decided by the City Civil Court by a judgment and order dated 8-3-1972. It would appear that there were litigation between the present defendant as defendant and Shashikant N. Shah and another as plaintiffs being S.C. Suit No. 56 of 1972 in which a Court Receiver was appointed. An application was made by the present plaintiff for possession which was decided by the City Civil Court by a judgment and order dated 8-3-1972. The relevant portion of the said order and judgment reads as follows :--- "Though the applicant has established his title and right to possession to the exclusion of the plaintiffs and the defendant, it is not possible to direct the Court Receiver to deliver possession to the applicant because he in fact took possession from the defendant who was carrying on business as applicant's licensee. However, the defendant does not dispute that he is a licensee. He undertake to return possession to the applicant after he receives it from the Court Receiver. The Court Receiver, shall deliver possession to the defendant from who he has taken it. He shall thereafter stand discharged without passing accounts. In view of this, I make no order on the applicant's Notice of Motion dated 29-2-1972. No order as to costs on the applicant's Notice of Motion and the Notice of Motion of the plaintiffs. Court Receiver to act on certified copy of Roznama." I am unable to follow why an order for direct possession in favour of the applicant could not have been made when the defendant was consenting to it. I am not aware of any law which prevented the Court from making such an order. This question, however, does not arise in the present case. 3. There is dispute between the parties hereto as to when the defendant delivered possession to the plaintiff in accordance with the said order. The plaintiff contends that it was delivered late, after a lapse of almost a period of about one year and thereafter the defendant took wrongful possession thereof. The defendant contends that it was delivered within one month from the date of the order and the premises were given back by the plaintiff to the defendant again under an oral agreement. The plaintiff contends that it was delivered late, after a lapse of almost a period of about one year and thereafter the defendant took wrongful possession thereof. The defendant contends that it was delivered within one month from the date of the order and the premises were given back by the plaintiff to the defendant again under an oral agreement. After this the present defendant filed a suit in the Small Causes Court at Bombay being R.A. Declaratory Suit No. 1946 of 1973 for declaration that he was a tenant of the premises and ad interim order was sought under which a notice was served on the plaintiff herein. The Small Causes Court suit was dismissed sometime in November 1974 for default of appearance of the defendant, he being the plaintiff in that suit. The plaintiff then filed the present City Civil Court Suit. The defendant thereafter got the Small Causes Court Suit restored on 2-6-1975 and the writ of summons was served on the plaintiff on or about 25-6-1975. Even after such restoration the defendant again remained absent and the notice for interim order came up for hearing on 7-9-1975 and was dismissed. In the meantime the plaintiff had applied for appointment of Receiver and by an order dated 8-7-1975 the City Civil Court appointed the Court Receiver as Receiver of the business. An appeal was filed against that order in this Court. On 20-4-1978 by consent of parties a workable arrangement was arrived at as a result of which an order was passed by this Court confirming the appointment of Receiver and directing that the Court Receiver should continue and the Court directed the trial Court to dispose of the suit expeditiously. It is further clarified that the arrangement was arrived at without prejudice to the contentions of the defendant that the City Civil Court had no jurisdiction to entertain and try the suit. 4. It is after this the suit reached hearing before the City Civil Court and the present order came to be passed on the preliminary issue as aforesaid. 5. Mr. 4. It is after this the suit reached hearing before the City Civil Court and the present order came to be passed on the preliminary issue as aforesaid. 5. Mr. Variava for the appellant contends that this order is wrongly passed as on a true construction of section 10 of the Civil Procedure Code one of the requirements for passing such an order is that previously instituted suit must be pending in the same or in any other Court in India having jurisdiction to grant the relief claimed in the subsequent suit. Mr. Variava does not dispute that the subject matter of both the suits i.e. the City Civil Court suit and the Small Causes Court suit are the same, but he contends that the Small Causes Court has no jurisdiction to grant the reliefs claimed in the City Civil Court. The said reliefs are that it may be declared that the defendants are trespassers in the suit premises as also in respect of the goodwill, tenancy rights and the assets lying in the said premises, for possession on the ground of the defendants being trespassers and for injunction restraining the defendants from interfering with the plaintiff's possession and also as the total value of the subject matter of this suit is over Rs. 15,000/-. 6. In my view the contention of Mr. Variava that it is not enough that there is substantial identity of the subject matter of the suit but that the Court in earlier suit should have jurisdiction to grant the reliefs claimed in the later suit is correct. It is also clear that the Small Causes Court has no jurisdiction to grant the reliefs which are claimed in the City Civil Court under the Presidency Small Cause Courts Act, 1982 or the Bombay Rent Act. In the Small Cause Courts Act amendments were carried out in 1976 which are not relevant as both the suits were filed before the said amendments. By virtue of section 19 of the Small Cause Courts Act, 1882 the Small Causes Court has no jurisdiction in the suit for the recovery of immovable property, suits to obtain an injunction and suits for declaratory decrees. By virtue of section 19 of the Small Cause Courts Act, 1882 the Small Causes Court has no jurisdiction in the suit for the recovery of immovable property, suits to obtain an injunction and suits for declaratory decrees. Small Causes Court has, however, jurisdiction to entertain the suits between the landlord and tenants by virtue of the provisions of the Rent Act and also to decide whether the relationship between the landlord and the tenant existed by virtue of section 39 of the said Act. However, it is clear that the question of jurisdiction under this special Act can be assumed only when the suit as filed was on the face of it between landlord and tenant. Once the Small Cause Court came to the conclusion that such a relationship did not exist, admittedly it cannot further decide as to what the relationship between the parties was. It is, therefore, clear that the Small Causes Court does not have jurisdiction to grant reliefs prayed for in the present suit, the plaint wherein clearly denies any existence of the relationship of landlord and tenant. 7. In support of his contention Mr. Variava has relied on (In the Goods of Mrs. Lilian Singh)1, A.I.R. (30)1943 Calcutta 19, (Nunu Singh v. Muni Nath Singh)2, A.I.R. 1954 Patna 314, (B.B. Chit Fund v. Ganpat Rai)3, A.I.R. 1973 Delhi 122, (Channabasappa v. Kishan Chand)4, A.I.R. 1972 Mysore 112. As I have independently taken the same view I need not discuss those decisions. 8. Mr. Kapadia for the respondents has strenuously opposed the contentions of Mr. Variava. Mr. Kapadia contends that the principle applicable is that if the decision in the previously instituted suit would become res judicata in the subsequent suit the provisions of section 10 are automatically attracted and that the stay must be granted by the Court. He further contends that even when the decision may not be res judicata under section 11 of the Civil Procedure Code, but can be considered as res judicata by reason of principles analogous to those under section 11 of the Civil Procedure Code the provisions of section 10 will be attracted. He further contends that even when the decision may not be res judicata under section 11 of the Civil Procedure Code, but can be considered as res judicata by reason of principles analogous to those under section 11 of the Civil Procedure Code the provisions of section 10 will be attracted. He then contends that even if section 10 of the Civil Procedure Code does not apply, the Court has inherent jurisdiction to grant such stay under section 151 of the Civil Procedure Code, and that in the present case this stay should be granted in exercise of such a power in the interests of justice. 9. Mr. Kapadia has strongly relied on the decision in (J.H. Iron Mart v. Tulsiram)5, A.I.R. 1953 Bombay 117. In that case it is held, inter alia, as follows: x x x x x "........Apart from any authority, turning to the section itself, it will be clear that section 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the Legislature in section 10 that the identity required is a substantial identity. It is true, as the authorities have laid down, that there must be an identity of the subject matter, it is equally true that the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same." xx xx xx "Therefore, the principle underlying section 10 seems to be that the policy of the Legislature is opposed to two courts with parallel jurisdiction proceeding simultaneously with two suits when there is a possibility of the two courts coming to different conclusions and thereby resulting in conflicts of decisions. If that policy underlying section 10 is kept in mind, then it would be easier to come to a decision with regard to different cases that arise for decision." The Court also quoted with approval a portion of another judgment of this Court in (Trikandas Jethabhai v. Jivraj Kalyanji)6, 44 Bom.L.R. 699 which, inter alia, says (P. 702). "....If in the earlier suit that issue is decided against the plaintiffs to the Bombay suit it will operate as "res judicata" and the Bombay suit if not earlier determined will necessarily fail. In my opinion it is immaterial that the relief claimed in the earlier suit is of a different character from the relief claimed in the present suit. The real question is whether the matter in issue in the Bombay suit is directly and substantially in issue in the earlier suit." 10. This case, if cursorily read, does tend to give an impression that once the Court comes to the conclusion that the decision in the earlier instituted suit if decided earlier will become res judicata in the subsequent suit or that there is likelihood of conflicting decisions by two courts, the provisions of section 10 are attracted. However, the decision in the case has to be viewed in the light of the point canvassed. The only point canvassed in that case was regarding the meaning of subject matter in issue, and the whole controversy turned around the interpretation of that portion of section 10. It was not canvassed at any time that by reason of later portion of section 10 of the Civil Procedure Code saying that the Court in which earlier suit was filed must have jurisdiction to grant reliefs claimed in the subsequent suit did not arise and so was not considered. Indeed such a contention could not have been taken in that case as the earlier suit was filed in Calcutta High Court and the subsequent suit was filed in Bombay High Court and though the reliefs were different in both the suits the Calcutta High Court having the same jurisdiction as the Bombay High Court under similar Letters Patent it was not possible to contend that Calcutta High Court had no jurisdiction to grant reliefs claimed in the Bombay suit. It is for this reason that this contention was not taken up in that matter. It is for this reason that this contention was not taken up in that matter. The effect of this decision, therefore, is that while considering the identity of the subject matter in issue the Court must bear in mind the provisions of section 11 of the Civil Procedure Code and that the two Courts with parallel jurisdiction proceeding simultaneously should not arrive at two conflicting decisions. If the stay was to be granted on this principle even though the earlier Court had no jurisdiction to grant reliefs claimed in the subsequent suit it will have the effect of rendering subsequent portion of section 10 completely otiose and such an interpretation is not permitted. It should also be noted that one of the principles laid down requires that the two courts should have parallel jurisdiction and in the present case the two courts do not have parallel jurisdiction but exclusive jurisdictions. In my view, therefore, this decision does not contain anything contrary to what I have held. 11. It must be further noted that in the judgment cited by Mr. Kapadia the effect of a decision in the Calcutta suit would be that all the material issues in Bombay suit would become res judicata and only question that would remain thereafter for the Bombay High Court would be the granting of suitable reliefs, if any. The question of giving decision on merits would not have survived after the decision of the Calcutta High Court. This is evident from the said judgment when after observing at (P. 120). The question of giving decision on merits would not have survived after the decision of the Calcutta High Court. This is evident from the said judgment when after observing at (P. 120). "Whatever reliefs the plaintiffs may seek in the Calcutta suit and whatever maybe the reliefs which the respondents may seek in the Bombay suit, these reliefs are incidental to the decision which the Court must come to as to what was the contract between the parties." It is observed as follows : ".........if once the Calcutta High Court has held what the contract was between the parties and what the terms of the contract were, the Bombay suit would effectively be put an and to because that decision would bind the parties and all that will be required to be done would be to give the necessary reliefs to the respondents in the Bombay Suit if they have succeeded and those reliefs will flow from the decision of the Calcutta Court and will be consequential upon the decision of the Calcutta suit." The consequence of the decision of the Calcutta High Court was to put an effective end to the Bombay suit also, whether the decision went one way or the other. As against this in the present case if the Small Causes Court decides that the defendant was a tenant it will put an end to the suit in the Bombay City Civil Court. However, if the decision goes the other way i.e. if it is held by the Small Causes Court that the defendant was not a tenant the matter will still remain completely open in the City Civil Court, and the City Civil Court will still have to decide on evidence and merits as to whether the defendant has any rights or not in respect of the business or the premises and reliefs, if any, to be given will be such as the Small Causes Court has any jurisdiction to grant. 12. Mr. Kapadia then relies on a decision in (Laxman v. Rajaram)7, A.I.R. 1979 Bombay 305. That decision does not deal with the effect of section 11 of the Civil Procedure Code in construing section 10 of Civil Procedure code. It only says that the general principles of res judicata are applicable even to the cases which are not specifically covered by the provisions of section 11 of the Civil Procedure Code. Mr. That decision does not deal with the effect of section 11 of the Civil Procedure Code in construing section 10 of Civil Procedure code. It only says that the general principles of res judicata are applicable even to the cases which are not specifically covered by the provisions of section 11 of the Civil Procedure Code. Mr. Kapadia then relied on (Dhondi v. Dadoo)8, A.I.R. 1954 Bombay 100. That case deals neither with section 10 nor with section 11 of the Civil Procedure Code. That case arose under section 85 of the Bombay Tenancy and Agriculture Lands Act before its amendment and Agricultural Lands Act before its amendment authorising the Civil Courts to refer the question to the Mamlatdar. Under that Act the only authority which has a power to decide whether the person is an agricultural tenant or not is the Mamlatdar and the jurisdiction of the Civil Courts to give such a decision is barred. A suit was filed in normal Civil Court under which such an issue arose. The question was whether in such circumstances the suit should be dismissed or stayed. In this context an order was passed for staying the suit and not dismissing the same. It was held that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightaway; the proper procedure to adopt in such cases would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. This case has no application in the context of the present case. It is clear that in this case even the City Civil Court has jurisdiction to decide, incidentally, as to whether the relationship between the plaintiff and the defendant is that of a landlord and tenant. The only consequence will be that if the relationship is as contended by the defendant, the City Civil Court will have to return the plaint for want of jurisdiction. 13. Mr. Kapadia then contends that even if section 10 has no application the Court has jurisdiction under section 151 of the Civil Procedure Code to grant such a relief, Mr. Kapadia seeks support from the aforesaid decision in Dhondi v. Dadoo, A.I.R. 1954 Bombay 100. In my view this decision does not support Mr. Kapadia. 13. Mr. Kapadia then contends that even if section 10 has no application the Court has jurisdiction under section 151 of the Civil Procedure Code to grant such a relief, Mr. Kapadia seeks support from the aforesaid decision in Dhondi v. Dadoo, A.I.R. 1954 Bombay 100. In my view this decision does not support Mr. Kapadia. The question that arose was not at all of stay of a suit under section 10 of the Civil Procedure Code. The question was of proper procedure to be followed when the plea of tenancy was taken up. Apart from that there is no reference to section 151 nor is there any contention raised as to whether the provisions of section 151 have any application. This case does not say that when section 10 cannot apply stay can be granted under section 151. Mr. Kapadia then relies on (Gurudial Singh v. Auckland House School)9, A.I.R. 1977 Himachal Pradesh 38. That judgment proceeded on an assumption that section 151 applies. There nobody contended that section 151 cannot apply if the matter is not covered by section 10 of the Civil Procedure Code. 14. As against this Mr. Variava has drawn my attention to (Manoharlal v. Seth Hiralal)10, A.I.R. 1962 Supreme Court 527. In that case a suit was filed by the applicant in 1948 in the Court of the Subordinate Judge at Asansol for recovery of Rs. 100,000/- on account of share in the capital as well as in the assets of the partnership firm. Subsequent suit was filed by the respondent in the year 1949 in the Court of the District Judge, Indore, for a sum of Rs. 1,90,519.06 against the appellant and further interest on the footing of settled accounts and in the alternative for a direction to the appellant to render true and full accounts of the partnership. An application was made to the Court at Asansol for the stay of that suit in the exercise of its inherent powers which was rejected holding, inter alia, that there was no scope for acting under section 151, Civil Procedure Code, as section 10 of the Code had no application to the suit, it having been instituted earlier than the suit at Indore. This order was confirmed by the Calcutta High Court. This order was confirmed by the Calcutta High Court. In these circumstances an application was made to the Indore Court for restraining the plaintiff from continuing the proceedings in the suit filed by him in the Court at Asansol on the ground that Asansol suit was vexatious. This interim injunction was granted by the District Court and an appeal preferred to the High Court of judicature at Madhya Bharat was dismissed, holding that the order of injunction could be issued in the exercise of the inherent powers of the Court under section 151 of the Civil Procedure Code. The plaintiff preferred an appeal to the Supreme Court from this dismissal of appeal. In this context a question arose as to whether the Court had inherent powers to grant injunction under section 151 when section 94 and Order 39 of the Civil Procedure Code specifically provided for granting of injunction. After considering various decisions it is observed in paragraph 21 of the judgment at page 533 as follows : "These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in section 151 itself. But these powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the legislature. This restriction, for practical purposes, on the exercise of those powers is not because these powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the legislature for orders in certain circumstances is dictated by the interests of justice." This principle definitely applies to the present case. What Mr. Kapadia canvasses for today is the exercise of inherent powers in a field controlled by section 10 of the Civil Procedure Code which says that though the matter in issue is also directly and substantially in issue in a previously instituted suit between the parties pending in the same or in any other Court in India having jurisdiction to grant the relief, stay can only be granted if the first Court has jurisdiction to grant reliefs claimed before the second Court. The exercise of powers under section 151 Civil Procedure Code to grant stay when not all but only some of the conditions laid down in section 10 exist will clearly be contrary to the intention of the legislature. Applying the above dictum of Supreme Court in (Aminchand Pyarelal v. Union of India)11, (1977)79 Bom.L.R. 1 a specific question whether recourse can be had to section 151 for staying a suit when the facts did not justify stay under section 10 was answered in the negative. Not only am I bound by the said judgment but am in respectful agreement with the same. 15. Mr. Variava contends that even if I have powers under section 151 to grant such stay the facts and circumstances of the case are such that I should not grant the same. Mr. Kapadia contends to the contrary. Mr. Kapadia says that if the plaintiff was carrying on business as trespasser since 1972 he ought not to have waited for a long period of three years to file the present suit when the defendant had already filed the suit in the Small Causes Court as early as in April 1973. As against this Mr. Variava points out the conduct of the defendants. In the Small Causes Court suit a notice for ad interim injunction was issued sometime in April 1973. The said notice was, however, not disposed of till in November 1974 when the said suit was dismissed for default of appearance. It would appear that the plaintiff came to know about the dismissal and filed the present suit in City Civil Court in Bombay in July 1975. Mr. Variava informs me, and Mr. Kapadia does not deny that in the notice of motion taken out in this suit in the affidavit in support the plaintiff has stated that the Small Causes Court suit was so dismissed. Thereafter the Small Causes Court suit was got restored on 2-6-1975 by the defendant and the writ of summons was served on the plaintiff on 25-6-1975. On 17-9-1975 the notice for ad interim order came up for hearing in the Small Causes Court and was discharged for default of appearance on the part of the defendant. In the meantime Receiver was appointed in the present suit. The defendant preferred an appeal from order appointing Receiver and the consent order referred to above came to be passed. On 17-9-1975 the notice for ad interim order came up for hearing in the Small Causes Court and was discharged for default of appearance on the part of the defendant. In the meantime Receiver was appointed in the present suit. The defendant preferred an appeal from order appointing Receiver and the consent order referred to above came to be passed. With the knowledge of the facts, the defendant consented to the expeditious hearing of the City Civil Court suit and when it reached hearing took up the contention of stay under section 10 but not under section 151. It is well known that the suits take several years in both, City Civil Court and Small Causes Court even to reach hearing. By virtue of the order of this Court the plaintiff got an opportunity to have his suit in the City Civil Court tried early. When the suit reached hearing early the defendant took the contention of stay after having agreed to the disposal of the suit by City Civil Court on merits subject to the preliminary contention regarding jurisdiction. The only intention of the defendant appears to be to delay the determination of the question of the respective rights of the parties and in the meantime to continue to enjoy possession. The attitude of the defendant regarding the Small Causes Court suit is also lackadaisical. In the circumstances even if I have a power to stay the suit under section 151 Civil Procedure Code, I would refuse to exercise the same in favour of this defendant. 16. In the circumstances, I make the rule absolute in terms of prayer (a) with no order as to costs and set aside the order dated 16-3-1979. I direct that the City Civil Court will proceed with the disposal of the suit as expeditiously as possible. I am sure that the City Civil Court will take into consideration the fact that this suit had reached hearing in 1979 and see that the suit is not delayed and retains its priority. -----