DAYANAND MODI Vs. UNION OF INDIA

JUDGEMENT

(1.) IN support of this rule Mr. Nandlal Untwalia pointed out that the petitioner had instituted Money Suit No. 23 of 1947 against the opposite party claiming damages for breach of contract. The petitioner alleged that there was an agreement between the parties for supply of potatoes for the use of Military Department for a period of three years (months ?) from 1st July 1946 to 30th September 1946. The petitioner further alleged that the opposite party had rejected a large quantity of potatoes supplied by the petitioner without any justification, on account of which the petitioner suffered a loss to the extent of Rs. 29,593 and odd. The petitioner therefore claimed a sum of Rs. 19,601 and odd which was the balance of the price of the potato supplied and a sum of about Rs. 17,000 and odd being damages for the breach of contract. The defence of the opposite party was that the petitioner himself had broken the contract and had failed to supply potatoes according to the specifications in the agreement. The Subordinate Judge allowed the claim for the balance of price but he rejected the claim of the petitioner for breach of contract. Against the decree of the Subordinate Judge, the petitioner has preferred an appeal which is pending in the High Court. The opposite party thereafter instituted a suit in 1949 claiming damages from the petitioner for breach of the same contract. The petitioner filed an application for stay of the suit on the ground that the matter in issue was directly and substantially same in the appeal pending before the High Court. But the Subordinate Judge did not consider the provisions of Section 10 of the Civil Procedure Code and directed the petitioner to "bring stay order from the Hon'ble High Court". The argument of Mr. Untwalia is that in passing this order the Subordinate Judge has failed to exercise jurisdiction vested in him by law.

(2.) THE argument advanced by Mr. Untwalia is well-lounded. It was indeed conceded by the learned Government Pleader that the order of the Subordinate Judge could not be supported. Upon the admitted facts of this case, it is clear that the matter in issue in the present case is also directly and substantially in issue in the Money Appeal pending in the High Court and under Section 10 C. P. C. the Subordinate Judge sought not to proceed with the hearing of the present suit. We therefore direct that the hearing of the present suit ought not to commence before First Appeal 180 of 1949 is finally disposed of in the High Court; but other proceedings of the court like filing of written statement, framing of issues and so on will not be stayed.THEre will be no order as to costs of this application. Let the hearing of First Appeal 180 of 1949 be expedited.