RAUNAQ INTERNATIONAL LIMITED Vs. OTA KANDLA PVT LIMITED

JUDGEMENT

(1.) This revision application arises out of the order dated 13-1-1983 passed by the learned Civil Judge (Senior Division) Bhuj on application Exh. 10/D in Civil Suit No. 53 of 1982. The said suit is filed by the opponents against the petitioner. It was filed on 14 Before that the petitioner had filed Civil Suit No. 230 of 1982 in the High Court of Delhi against the opponents. The summons issued in that suit was served on the opponents and they were directed to appear before the Delhi High Court on 7-4-1982. On that day the opponents did not appear before the Court; and therefore the Delhi High Court passed an order for listing the suit before the Court in the category of short matters on 16-4-1982 for passing appropriate orders. The petitioner on coming to know about the suit filed in the Court of the Civil Judge (Senior Division) Bhuj gave application Exh. 10/D under sec. 10 read with sec. 151 of the Code of Civil Procedure 1908 (hereafter referred to as the Code) requesting the Court to stay further proceedings in the suit before it till the disposal of Civil Suit No. 230 of 1982 pending in the Delhi High Court on the ground that the matters in issue in both the suits arise out of the same contract between the same parties and the matter in issue is directly and substantially the same in both the suits. The learned trial Judge rejected that application on the ground that before it can be decided as to whether the matter in issue in both the suits is directly and substantially the same or not it is necessary that the parties in both the suits should have filed their written statements and that the issues should be framed in the suits. Till that is done it would not be possible for the Court to decide whether the matter in issue in both the suits is directly and substantially the same or not. As no written statement has been filed in the present suit and as no issues have been framed in the suit pending in the Delhi High Court the learned trial Judge held that the stage for making an application under sec. 10 of the Code has not been reached and the application given by the petitioner is premature. Aggrieved by that order the petitioner who is the original defendant in the present suit has filed this revision application.

(2.) In my opinion the view taken by the learned trial Judge is not correct. In a given case it may not be possible for the Court to come to the conclusion whether the matter in issue in both the suits is directly and substantially the same or not till written statements are filed; and if an application under sec. 10 of the Code for staying further proceedings of a suit is rejected on such a ground then no ex-ception can be taken to such a decision. But it is not correct to say as general proposition of law that the written statement is filed by the defendant in the subsequent suit his application for staying further proceedings under sec. 10 of the Code cannot be entertained and must be rejected as premature. It appears that the learned trial Judge relied upon the decision of Manipur Judicial Commissioners Court in L. R. Singh v. H. D. Sharma AIR 1964 Mani 2. As against that it has been held by the Calcutta High Court in S. M. Modi v. Mansata Film Distributors AIR 1957 Calcutta 727 and S. K. Rungta and Co. v. Nawal Kishore Debi Prasad AIR 1964 Cal. 373 that the Court would entertain an application of the defendant for stay in a case where he has annexed a copy of the plaint in the previously instituted suit and it can be found out from the copy of the plaint as to what the dispute between the parties is. In S. M. Modis case it is further pointed out by the Calcutta High Court that even in a case where a perusal of the two plaints is not enough to find out whether the subject-matter of controversy between the parties in the two suits is identical or not the Court should keep the application pending arid take it up for decision after getting the written statement filed but it should not dismiss the application at that stage. The Punjab and Haryana High Court also took the same view in M/s. Rup Chand v. M/s. Basant Lal AIR 1975 Punjab and Haryana 171 Same view has been taken by the Delhi High Court in C. L. Tandon v. Prem Pal Singh AIR 1978 Del 211. I fully agree with the view expressed by the Calcutta Punjab and Delhi High Courts.

(3.) The learned trial Judge in this case has not found that it was not possible for him on a perusal of the two plaints to come to a definite conclusion as to whether the matter in issue in both the suits is directly and substantially the same or not. As stated earlier he rejected the application on an assumption that the correct proposition of law is that such an application cannot be entertained till the written statement is filed by the defendant. As the learned trial Judge has rejected the application on an erroneous assumption as regards the correct position of law the order passed by him will have to be set aside.