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Also that the views expressed by their Lordships of the Privy Council in A I R 1942 P C 8 and A I R 1931 P C 263 would be duly respected, if the second suit were allowed to proceed in respect of the additional claims of the plaintiff. Further, that it is an error to suppose that section 151, Civil Procedure Code confers any new power on the Courts. The inherent powers to act ex debito justitiae and to prevent abuse of powers existed before the Code became law. Since the Code contains detailed and express procedural provision to cover nearly every contingency which might arise in the exercise of civil jurisdiction, the maxim expressio unius est exclusio alterius might have been invoked to support the argument that the Courts could exercise no power which was not expressly given by the Code. This inference is avoided by the enactment of section 151, Civil Procedure Code but only to the extent specified. Muhammad Nazeer and Sultan Ali for Petitioner. Nemo for Respondents. Cornelius, J.‑(13th October 1947).‑This is a petition by a plaintiff whose suit against five defendants, originally instituted on the 21st August 1939, has been stayed by order of the trial Court, dated 19th February 1946, praying that the stay order be set aside. The petition was instituted on the 15th May 1946 and has thus itself been pending for other plaintiffs namely his minor brothers for whom he acted as next friend and in addition to the defendants in the second suit. Mst. Sardar Begum, Lal Jia Ram M/s Beli Ram & Brothers, Chaudhry Din Muhammad and Chaudhry Ghulam Mustafa, there were four others namely Mr. Madan Lal Sethi, Mrs J. G. Sethi, Lala Bulaqi Mal and Lala Ram Lal. These persons were mortgagees of parts of the property from one Chaudhry Ghulam Rasool and the suit was for a declaration that alienations by Chaudhry Ghulam Rasool and after his death by his sons Din Muhammad and Ghulam Mustafa in favour of Lala Jia Ram, Messrs. Beli Ram & Brothers and Mst. Sardar Begum were void by reason of the fact that the properties alienated were wakf. In a declaratory suit brought in 1931 on behalf of the petitioner Muhammad Afzal and his brothers Ghulam Moeen‑ud‑Din and Muhammad Aslam, all being minors, against Din Muhammad, Ghulam Mustafa and others, for a declaration that the suit properties were wakf, evidence of a dubious nature had been allowed to be led on the plaintiffs' behalf by their next friend, who was father‑in‑law of Din Muhammad, and this was done collusively, with intent to damage the interests of the then plaintiffs; the result was that the suit had been dismissed, and one of the prayers in suit No. 95 of 1936 was that the result of the suit should be declared to be void and ineffectual as against the interests of the plaintiffs in that suit. The second suit viz., No. 253/267 of 1939 was instituted by a single plaintiff namely Muhammad Afzal and only five defendants were implea ded, whose names have been given above. The declarations claimed were firstly that the alienations of the suit property made by Ghulam Rasool and his sons Din Muhammad and Ghulam Mustafa, which from the sub ject‑matter of the suit, were altogether void, secondly that the plaintiff was not bound by the judgment in the suit of 1931 mentioned above, thirdly that the plaintiff was the legally‑constituted Mutwalli of the wakf property which included the suit property and fourthly for possession of the alienated property and an injunction against Din Muhammad and Ghulam Mustafa to restrain them from interfering in any manner with the plaintiff's possession and management in, respect of the suit pro perties; in addition mesne profits for three years prior to the suit and for the further period up to the date of recovery of actual possession, were also sought. In the first suit, the plaintiff succeeded in obtaining a decree from the High Court, and the defendants have instituted an appeal before the Privy Council which is still pending. The second suit had been dismissed by the trial Court at the same time as it dismissed the first suit, and the effect of the appeal from the dismissal of the first suit being accepted by this Court was that the second suit was restored and proceedings were started afresh. It does not appear that the issues had been drawn when the defendants in the second suit applied to the Court that the suit should be stayed as they had instituted an appeal before the Privy Council from the decree of the High Court in the other suit. Sections 10 and 151, Civil Procedure Code were cited as providing for the relief sought. The learned Sub‑Judge found that there were differences between the two suits viz, that in the second suit possession and mesne profits were sought to be recovered, and consequently sections

10. Civil Procedure Code had no application. He held, however, that section 151, Civil Procedure Code, he had power to stay the suit, particularly as at one stage, counsel for the plaintiff had made a statement that the suit should be stayed till the disposal of the previous suit, and further concluded that a stay order would be in the interests of both parties. Accordingly he stayed the suit till the disposal of the appeal before the Privy Council. The present petition has been brought by the plaintiff to have this order set aside, and while relying on the finding that the case is not covered by section 10 Civil Procedure Code, learned Counsel for the petitioner has urged that section 151, Civil Procedure Code can not provide power for a case like the present, to which the specific provisions contained in sections 10 and 11 have been found to be in applicable. Plainly there are substantial differences between the two suits. Whereas the first suit was for a mere declaration that the properties in suit were wakf and in consequence, alienations thereof by certain persons were void and ineffectual, the second suit, while adopting these pleas goes further in alleging that the plaintiff is the Mutwalli of the wakf and in asking for possession of the alienated property to be delivered to him in that status. There is also the point that mesne profits are sought in the second suit. The point that Muhammad Afzal is a duly‑constituted Mutwalli of the wakf forms no part of the contentions in the first suit and it is upon this contention that the prayer for the consequential reliefs by way of grant of possession and mesne profits is based. Section 10, Civil Procedure Code bars the trial of a suit in which "the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties." It is clear that "the matter in issue" in the second suit is not precisely the same as in the first suit. The mere fact that one or two issues are common to the two suits viz., whether the property is wakf and whether the alienations are void is not sufficient for bringing the suit within the scope of section

10. It was held by a Division Bench of the Allahabad High Court in the case Girgi Din v. Debi Charan (I L R 51 All. 1017) that the words "matter its issue" must mean "the entire matter in controversy" and not merely one of several issues in the case and further that the meaning of these words could not be limited to the subject‑matter in dispute. It was further remarked that "had the intention of the legislature been to widen the scope of section 10 so as to make it co‑extensive with section 11, the language employed would have been identical". Section 11, Civil Procedure Code, it may be noted‑distinguishes the trial of the whole suit from the trial of a single issue when it employs the words: "No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by such Court." The difference between the language employed in this section and that employed in section 10 is perfectly plain, and speaking with great respect, I am in agreement with the view taken by the learned judges of the Allahabad High Court, that the two sections should be construed together and that the express mention of the trial of a single issue in section 11, compared with its omission in section 10, justifies, the conclusion that the legislature did not intend the letter section to the applicable where only one or a few of the issues in the two cases were the same. This conclusion necessarily has a bearing upon the question whether power to stay the suit on account of some of the issues which it involves being also issues in another pending suit, which is clearly not derivable from section 10, is inherently possessed by the Court. The learned Sub‑Judge has cited five authorities in support of his conclusion that he could stay the suit under section 151, Civil Procedure Code. Mul Chand v. dwan Das (144 I C 107) is a decision of a learned Single judge of this Court. There the suit which was pending was connected with an appeal which was also pending and upon whose result, the fate of the suit was likely to depend. The learned Judge held that in the cir cumstances it was in the interests of both parties that the suit should not proceed until the appeal was decided. As whether power to stay the suit could be derived from section 10 or was inherently possessed by the Court, this was not seriously challenged by the opposite party, whose pleas in opposition to the petition before this Court were rested on a wholly different basis. Consequently speaking with great respect it is not possible to regard the case as containing an authoritative interpretation of section 151, Civil Procedure Code in the relevant connection. Kaudu Mal v. Tilak Ram (A I R 1929 Lah. page 12) is a case where proceedings in a suit pending in a Ludhiana Court which had been stayed by an injunction obtained by the defendant from the Bombay High Court, where a suit which he had filed against the plaintiff was pending, had been revived on application by the plaintiff in the contravention of the aforesaid injunction. On a petition by the defendant, a learned judge of this Court directed stay of the suit in the Ludhiana Court, purporting to act "under the inherent powers of this Court and under the powers of general supervision and superintendence vested in the High Court". On the point of fact, the learned judge held that the suit at Ludhiana was instituted merely to put pressure on the Bombay Firm, the character of the proceedings in the case at Ludhiana being made clear by the fact that the Ludhiana Court had sent a demand for account books which could not leave Bombay on account of inspection thereof having been ordered' to take place at Bombay by the High Court. The learned Judge also remarked that to allow the Ludhiana suit to proceed, would amount to an abuse of the Courts "as it is impossible that two suits should proceed at one and the same time." These facts bear no resemblance to those of the present cases. The second suit has not been brought in order to embarrass the defen dants in the first suit but merely to assert additional rights to relief in a different status from that alleged by the plaintiffs in the first suit. Proceedings before the Privy Council in the first suit cannot be hamper ed in any way if proceedings in the second suit are continued in the trial Court here. There is no question of abuse of either the Privy Council or of the trial Court resulting from the second suit being allowed to proceed. The question as to the scope of the second suit being identical with that of the first suit was not raised in Kaudu Mal v. Tilak Ram‑Hukam Chand Boid v. Kamalanand Singh (I L R 33 Cal. 927) which is next cited in the judgment of the learned Sub‑Judge contains certain general remarks to the effect that the Civil Procedure Code of 1882 is not exhaustive, but that in regard to matters with which the Code does not expressly deal, the Court has "inherent jurisdiction to do that justice between the parties which is warranted under the cir cumstances and which the necessities of the case require". With that proposition I am in full agreement, speaking with great respect. Plainly, it cannot avail to provide power under section 151, Civil Procedure Code to do that which, upon proper construction of sections 10 and 11, Civil Procedure Code is intentionally not empowered by the Legislature. Moreover the circumstances of the present case are not such as to call for a stay order, for the ends of justice or to prevent abuse of the process of the Courts. The next case on which the learned Subordinate Judge relied is a decision of the Privy Council published as Kumar Chandra Singh Dudhoria and others v. Midnapoye Zemindary Co. Ltd. (A I R 1942 P C 8). There a Court had passed a decree in a suit pending before it, which involved an issue which was also pending before the Privy Council in a connected suit; in order to allow for the decision which might later be given by the Privy Council, the Court in making its decree declared, that it was subject to the final decision of the Privy Council in the other case. It was held by the Privy Council that in such a case, the only proper course was for the trial Court to adjourn the suit without making any decree, until final determination of the other suit. Along with this case the last case cited by the Sub‑Judge may be con sidered which is Annamalay Chetty v. Thornhill (A I R 1931 P C 263) a case decided by the Privy Council from Ceylon where the two suits in question were based on exactly the same cause of action, with this difference that the second case included a prayer for future interest which had not accrued on the date when the first suit was instituted. Necessity for the institution of the second suit arose on account of certain circumstances relating to the first suit which might have resulted in rising the bar of limitation, unless the second suit was instituted. The second suit was dismissed by the trial Court on the ground that it was barred by statutory provisions similar to those contained in sections 10 and 11 of the Civil Procedure Code, 1908. In holding that the dismissal was bad by reason of the fact that since an appeal was pending from the decision in the first suit that decision could not operate as res judicata, the Judicial Committee expressed their regret that the second action was not adjourned pending the decision of the appeal in the first action. It is stated by learned counsel for the petitioner that he has no desire to have a fresh decision recorded upon the questions whether the property in suit is waqf and whether the alienations are void, but he is anxious that no further time should be lost in investigating and deciding as to the additional claims put forward by him, namely that he is Mutwalli, and in consequence entitled to possession and mesne profits, which are not inconsistent with the last decision of this Court, in the other suit that the property is waqf and the alienations are void. The views ex pressed by their Lordships of the Privy Council in the two cases cited above would be duly respected if the suit were allowed to proceed in respect of the additional claims of the plaintiff, the questions whether the property is Waqf and the alienations consequently void being left untouched awaiting the decision of the Judicial Committee. To streng then the argument in favour of early disposal of the suit, it was stated that the suit property was of high value, and was yielding an income of Rs. 8,000 a month to the alienees, whose title the plaintiff has success fully impugned in the earlier suit. The observations of their Lordships of the Judicial Committee in the two cases cited above do not provide adequate support for the action taken by the learned Subordinate Judge. In the first case, the trial Court had decided the other issue besides that which was pending before the Privy Council; there is nothing in the judgment of their Lordships to indicate that they disapproved of this, or considered that the whole case should have been stayed, pending decisions on a single issue by the Privy Council. The second case appears to fall more or less directly within the terms of section 10, Civil Procedure Code; the addition of future interest which accrued automatically, would hardly differentiate the "matter in issue" in the first suit from that in the second. Thus, none of the authorities upon which the learned Sub ordinate judge has relied furnishes a basis for the application of sec tion 151, Civil Procedure Code in a case of this kind. On the other hand, it is plain that except where it is necessary in order to secure the ends of justice or to prevent abuse of the process of the Court, such a stay order cannot be made under that section, and no necessity of either kind exists in the present case. It is an error to suppose that section 151, Civil Procedure Code confers any new power on the Courts. The inherent powers to act ex debito justitiae, and to prevent abuse of process existed before the Code became law. Since the Code contains detailed and express procedural, provision to cover nearly every contingency which might arise in the exercise of civil jurisdiction, the maxim expressio unius est exclusio alterius might have been invoked to support the argument that the Courts could exercise no power which was not expressly given by the Code. This inference is avoided by the enact ment of section 151, Civil Procedure Code, but only to the extent specified. I accordingly allow this petition and setting aside the stay order, direct that the Court shall proceed with the trial of the issues which are not directly covered by issues pending for final disposal before the Privy Council. The trial of these limited issues shall proceed on the basis that the decision on the excluded issues by this Court is pro tempore correct and when evidence of both sides in relation to these limited issues is complete, the suit will be adjourned, if necessary, till the decision of the Privy Council in the first suit. Thereupon, proceedings in the suit shall be recommended, and the parties will be allowed a further opportunity to lead evidence, if this is sought or rendered necessary on account of the Privy Council decision, and the Court shall then proceed to decide the suit in accordance with law. A. H. Stay order partially set aside.