M/S. RENUKA SAREES Vs. BALDEV SINGH

JUDGEMENT

(1.) - Heard learned counsel for the parties.

(2.) The petitioner is aggrieved against the order dated 6th Dec., 2001 by which the petitioner-defendant's application under Sec. 10 C.P.C. was dismissed by the trial Court on the ground that the parties in the two suits are different and the subject-matter of the suit is not one of the same in two suits. Learned counsel for the petitioner vehemently submitted that the trial Court has committed error of jurisdiction in holding that the parties are different and the subject-matter is also different in the two suits. It is submitted that the party is M/s Binani Bandhu which is a firm and though whom the suit has been filed or represented for M/s Binani Bandhu is not relevant. The fact remains is that the party is a firm. It is also submitted that there is a dispute with respect to certain bills and the amount sought to be recovered is said to be these bills and of hundi dated 2nd July, 1998, which according to other party has been settled out and therefore, one suit is filed for injunction restraining other party from recovering the amount whereas the other party is insisting to recover the amount. Learned counsel for the petitioner pointed out that the provisions of Sec. 10 of the C.P.C. is mandatory and the Court has no jurisdiction to proceed with trial of the subsequently filed suit in case the issue is same. It is stated by learned counsel for the non-petitioner that in the subsequently tried suit even written statement has not been filed till the date of filing of the revision. It is also submitted that one suit is for mere injunction and no relief can be granted by the Court where the suit has been filed for injunction of the relief with the non-petitioner's claim. Without going into the merits of the matter and in view of the submissions of learned counsel for the non-petitioner that the written statement has not been filed in the suit of the non-petitioner by the petitioner, therefore, at the stage, when the impugned order was passed by the trial Court, no full material was available before the trial Court to reach the conclusion whether the point in issue in both the suits is substantially same or not It appears from the order dated 6th Dec., 2001 also that the trial Court proceed on the basis of certain facts mentioned or brought to the notice of the trial Court, but in fact, it is clear that at the time when the order was passed, the issues of the two suits were not before the trial Court and as per submission of the learned counsel for the parties, even the written statement in one of the suit was not there and to find out what are the issues involved, which can be gathered only on the basis of the pleadings of the parties.

(3.) In view of the above reason, since the trial Court has rejected the application at the stage where the trial Court should not have rejected, but should have kept the application pending, therefore, the order dated 6th Dec., 2001 passed by the trial Court is set aside with liberty to the petitioner to move another application after filing the written statement, if permissible under the law and after framing of the issues in both the suits so that appropriate order may be passed.