PENUKONDA PADMANABHAM CHETTY Vs. MOYA RAMASWAMY

JUDGEMENT

(1.) THIS is to revise the order of the Court of the Subordinate Judge, Vijayawadain I.A.No. 2566 of 1966 in O.S.No. 108of 1965. I.A.No. 2566 of 1966was filed by the second defendant in O.S. No. 108 of 1965 under sections 10 and 151 of the Civil Procedure Code praying to stay all further proceedings in O.S. No. 108 of 1965 pending disposal of O.S. No. 2554 of 1965 on the file of the 5th Assistant, City Civil Court, Madras, and pass all just and necessary orders. A few facts may be stated here. The parties herein will be referred to according to their ranking in O.S. No. 108 of 1965 on the file of the Sub Court, Vijayawada. The plaintiff executed a promissory note, in favour of the first defendant, dated 17th August, 1962. That promissory note was transferred by the first defendant to the second defendant at Madras on 11th July, 1965, and the second defendant also issued a notice to the plaintiff informing him of the transfer. However, on 31st July, 1965 the plaintiff Bled O.S. No. 108 of 1965 for a declaration that he was entitled to the benefits of Madras Act IV of 1938 and for scaling down the debt. Originally the suit was filed against the first defendant only. However, in pursuance of the order of this Court in C.R.P. No. 204 of 1966, dated 19th Septemeber, 1966 the second defendant also was subsequently brought on record as the second defendant in O.S. No. 108 of 1965. On 16th August, 1965, the second defendant filed O.S. No. 2554 of 1965 in the City Civil Court, Madras, to recover the amount due on the promissory note dated 17th August, 1962, transferred to him by the first defendant. His attempts to get the Viiayawada suit, stayed, i.e., O.S. No. 108 of 1965, made in the City Civil Court as well as in the Madras High Court failed. Thereafter he filed the present application in the lower Court for staying the trial of O.S. No. 108 of 1965 till his suit O.S. No. 2554 of 1965 in the City Civil Court, Madras is disposed of.

(2.) THE lower Court rejected the petition on the ground that O.S. No. 108 of 1965 is the earlier suit having been filed on 31st July, 1965 than O.S. No. 2554 of 1865 which was filed on 16th August, 1965 and therefore the suit cannot be stayed under section 10, Civil Procedure Code. It is contended before me by Sri Narasimha Rao, the learned Counsel for the petitioner, that his client, i.e.,the second defendant, who is the petitioner in this Civil Revision Petition was added and brought on record in pursuance of the order of this Court in C.R.P. No. 204 of 1966, subsequent to his filing of O.S. No. 2554 of 1965 in City Civil Court, Madras and by virtue of sub-rule 5 of Order 1, rule 10, Civil Procedure Code the proceedings in O.S. No. 108 of 1965 against him must be deemed to have begun only on his addition as a party to O.S. No. 108 of 1965, that is, later than and subsequent to his institution of his suit O.S. No. 2554 of 1965 on 16th August, 1965. He therefore argued that as far as D-2 is concerned O.S. No. 108 of 1965 must be deemed to be the later or subsequent suit. I do not think that I can uphold his contention. What sub-rule 5 of Order 1, rule 10, Civil Procedure Code, says is that the procet.dir.gs as against any person added as defendant shall be deemed to have begun only on the service of the summons, while section 10 refers to the time of the institution of the suit as the crucial date. To my mind it is clear that for the purpose of section 10 of the Civil Procedure Code, it is the date of the actual institution of the suit that is crucial and material. O.S. No. 108 of 1965 having been instituted on 31st July, 1965, the deeming provision that is contained in sub-rule 5 of Order 1, rule 10, Civil Procedure Code, that the proceeding shall be deemed to have begun only on the service of the summons does not affect the position under section 10, Civil Procedure Code. I am, therefore, of the opinion that the view taken by the lower Court is right that O.S. No. 108 of 1965 is the earlier suit. THEre is also another consideration, viz. that the previously instituted suit as contemplated by section 10 need, not necessarily be between the same parties. It can also be between the parties under whom they or any of them claim, litigating under the same title. It is not disputed that the secor.d defendant is litigating under the same title as the first defendant. THE first defendant being a party to it even to start with, the O.S. No. 108 of 1965 is, undoubtedly, for the purpose of section 10, Civil Procedure Code, an earlier suit. I am, therefore, unable to accept the contention of Sri Narasimha Rao. In this view the lower Court is right. THE revision. petiton. is, therefore, dismissed with costs. Petition dismissed.