JAI HIND IRON MART Vs. TULSIRAM BHAGWANDAS

JUDGEMENT

(1.) The respondents in appeal No. 58 of 1952 filed a suit in the Calcutta High Court on 4-2-1952, and the appellants filed a suit in this Court on 8-2-1952. The appellants took out a notice of motion to restrain the respondents from proceeding with the suit which they had filed in Calcutta. The respondents took out a notice of motion to stay the suit filed by the appellants under Section 10. The learned Judge refused to issue an injunction restraining the respondents from proceeding with the Calcutta suit and he also dismissed the motion taken out by the respondents to stay the Bombay suit under Section 10. And these two appeals are preferred from the two orders passed by the learned Judge.

(2.) Now, with regard to appeal No. 58 of 1953, which is from an order of the learned Judge refusing to issue an injunction against the respondents restraining them from proceeding with the Calcutta suit, a preliminary objection is taken by Mr. Bhabha. It is clear that that order is made under Section 151, Civil P.C. A party cannot be restrained from proceeding with an earlier instituted suit under Section 10. He can only be restrained under the inherent powers of the Court and those powers are exercised when the Court is of the opinion that the suit constitutes an abuse of the process of the Court or has been filed mala fide or in order to forestall the suit which the defendant would have filed in another Court. Now, Mr. Bhabha says that the decision of the learned Judge does not constitute 'judgment' within the meaning of Clause 15 of the Letters Patent and Mr. Bhabha is supported by the authority of a divisional bench of this Court reported in -- 'Venichand v. Lakhmichand Maneckchand', 44 Bom 272. The very point came up for decision before Sir Norman Macleod, Chief Justice, and Mr. Justice Heaton and they took the view, following the well-known case of --'The Justices of the Peace for Calcutta v. Oriental Gas Co.', 8 Beng LR 433, that the decision did not affect the merits of the question between the parties by determining some right or liability and, therefore, they held that no appeal lay. The Advocate General has relied on a decision in the same volume reported at p. 283 -- 'Mulchand Raichand v. Gill & Co.', 44 Bom 283, and the Advocate- General says that another divisional bench of this Court, Mr. Justice Heaton and Mr. Justice Marten, did entertain an appeal on the Original Side from a similar decision. Now, that is not quite correct. What had happened in this case was that an application was made to the learned Judge below under Section 10 to stay the suit. The learned Judge dismissed that application and it was from that order that an appeal was preferred and the appellate Court held that although Section 10 might not apply, the Court had jurisdiction under Section 151 to restrain a party from proceeding with the suit. And Mr. Justice Heaton is at pains to point out at p. 293 that their attention was drawn to the earlier judgment in -' Venichand v. Lakhmichand Maneckchand', and the learned Judge states that it was not argued before them that the appeal did not lie in the case before them and as they were dismissing the appeal it did not greatly matter whether it did or did not lie. Therefore, the decision on which the Advocate General relies cannot be looked upon as a decision in conflict with the decision given by Sir Norman Macleod, Chief Justice, and Mr. Justice Heaton. Therefore, we accept the contention of Mr. Bhabha and hold that the appeal No. 58 of 1952 does not lie and it must be dismissed with costs.

(3.) Turning now to appeal No. 59 of 1952, the question that we have to consider is whether the matter in issue in the Bombay suit is directly and substantially in issue in the previously instituted Calcutta suit. The learned Judge below has taken the view that it is not so and therefore has refused to stay the suit. Now, a few facts may be stated. The Calcutta suit was filed by the appellants on a contract dated 4-11-1951, and their case was that the contract was for a sale by them of 1898 tyres to the respondents. Their further contention was that these tyres were according to certain specifications and they contended that the plaintiffs failed to take delivery of these tyres and therefore they filed a suit for damages for non-acceptance. In the Bombay suit the respondents sued on the same contract of 4-11-1951, but their contention was that under this contract they had contracted to purchase only 1,600 tyres and not 1,898 tyres. Further the contention was that these 1,600 tyres were not according to specifications but they were according to certain contract quality, and their grievance in the Bombay suit was that the tyres that were delivered were not according to contract quality. 'They, therefore, filed a suit for refund of a certain amount in respect of the price they had paid for tyres which were not according to contract quality and also for damages for non-delivery. This is the nature of the two suits and the question arises whether looking to the nature of these two suits it could be stated that the matter in issue in the Bombay suit is directly and substantially in issue in the Calcutta suit. 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.