P P GUPTA Vs. EAST ASIATIC CO BOMBAY

JUDGEMENT

(1.) This revision, under Section 115, C. P. C. raises the important question whether the inherent power of the Civil Court to consolidate two suits between the parties is affected by Section 10 C.P.C. which enjoins that the Court shall not proceed with the trial of any suit in which the matter in issue is also in issue in a previously instituted suit between the same parties. The learned Additional Civil Judge of Agra, who is seized of both the cases, allowed the application of the respondent and directed the consolidation of two suits between the parties which had been filed on different dates. Against this order the applicant has filed the present revision on the ground that Section 10 C. P.C. is an absolute bar against such consolidation.

(2.) It is necessary to state very briefly the facts which have led to the filing of this revision. The applicant is P. P. Gupta, proprietor of a printing press in Agra known as the Premier Press. The respondents, the East Asiatic Company. Bombay, are a limited registered Company dealing with machinery and engineering materials. It is common ground that the applicant P. P. Gupta and the Company entered into a contract for the purchase by Gupta of a printing press which was offered by the Company for Rs. 19,000/- for Agra. It is also common ground that this press was delivered to the applicant at Agra. It is also not in dispute that the purchaser Gupta paid Rs. 2,000/- in advance and further sums totaling Rs. 3,220/-/- that is, a total sum of Rs. 5,220/- towards the price of the machinery. After this there was a dispute between the parties regarding the performance of the contract. The Company claimed Rs. 13,848/12/- as the balance of the sale price while Gupta. on the other hand, alleged that the machinery had not been installed in accordance with the terms and conditions of the agreement and accused the company of breach of contract and claimed the refund of the moneys already paid by him. There was correspondence between the parties but no amicable settlement. On 26th April, 1955 the applicant P. P. Gupta filed the first of 'he two suits now pending in the court of the Civil Judge, Agra in which be accused the Company of breach of contract and prayed for a decree for Rs. 6,991/7/- being the amount paid by him towards the sale price to- gether with interest. On 8th October, 1956 the Company filed the second suit in the same court for the recovery of the balance of the sale price together with interest. It was stated by learned counsel for the Company and not denied by the learned counsel for the applicant that Gupta filed a suit after he had received a notice from the Company threatening to file a suit against him. According to the company, he anticipated any action on their part by filing his suit. To use a vulgar phrase, he got in his blows first.

(3.) A comparison of the two plaints would show that they arise out of the same transaction. The applicant Gupta states in his plaint that there was a contract for the purchase by him of a printing press belonging to the Company, He further states that under the terms of the contract of sale, the defendant Company agreed that their Engineer would go to Agra and supervise the installation of the machinery and also train the printers employed by the plaintiff. He further alleges that instead of sending a qualified Engineer, the. Company sent one who was not properly qualified. He also states that, owing to the default of the defendant Company, the printing press purchased by him did not work and never acquired the degree of efficiency to which he was entitled. He therefore claimed the refund of Rs. 5,991/7/- paid by him towards the price together with Rs. 1,000/- as damages suffered by him.