MINOCHER BEHRANJI DAMANIA Vs. HOMA N DADACHANJI

JUDGEMENT

(1.) 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 Kings 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. The relevant portion of the said order and judgment reads as follows :---

(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. 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.