SOMASUNDARAM CHETTIAR Vs. AVENKATA SUBBAYYA

JUDGEMENT

(1.) The simple point raised in this petition is whether the Subordinate Judge of Anantapur was bound as a matter of law under Section 10, Civil Procedure Code, to stay the trial of O.S. No. 22 of 1937 pending on his file in view of the earlier institution of another suit (O.S. No. 280 of 1936) on the file of the District Munsif of Tirupur.

(2.) The only point argued before me is that it is not necessary for the application of Section 10, Civil Procedure Code, that the Court in which the earlier suit was instituted should be competent to decide the subsequent suit which is to be stayed. On this point, I am of opinion that the weight of authority is against the contention of the petitioner. Even a grammatical construction of Section 10, Civil Procedure Code, as it stands, really does not support this view. The words "relief claimed" should, in my opinion, apply to the suit which is to be stayed and not to the earlier suit. This is the construction adopted in several decisions the effect of which is embodied in Mulla's Commentary on Section 10 of the Civil Procedure Code as follows : The third essential condition for stay under Section 10, Civil Procedure Code, is that the Court in which the previously instituted suit is pending must be a Court of jurisdiction competent to grant the relief claimed in the subsequent suit. This condition as well as the other conditions appear to have been taken from Bogla V/s. Khemka (1919) 55 I.C. 254, which, as has been pointed out by the learned advocate for the respondent, was decided by the very same judges who decided the subsequent cages reported in Manmull Khemka v. Murlidhar Bogla (1919) 57 I.C. 904, which was relied upon in support of the petitioner. In Manmull Khemka V/s. Murlidhar Bogla (1919) 57 I.C. 904, the learned judges were asked to reconsider that view in the earlier case but they declined to do so. It may be that the argument of inconvenience would apply whether the Court in which the earlier suit is pending has jurisdiction or not; but it cannot be said that the only ground on which the Legislature enacted Section 10 was to avoid inconvenience to the parties and that that section has nothing to do with the object of the succeeding sections which is undoubtedly to enforce the rule of res judicata. The latest case on the subject is Durgaprasad V/s. Kantichandra Mukherji (1934) I.L.R. 61 Cal. 670 in that case, it is clearly stated at page 687 by Costello, J., that the real criterion to apply with reference to Section 10 is this: Supposing the first suit was determined; would the position then be that when the second suit was instituted the matters raised in the second suit were res judicata by reason of the decision of the prior suit? In that way, the provisions of Section 10, logically and naturally, precede Section 11.

(3.) If the third condition referred to in Mulla's Commentary were not insisted upon, the result would be strange, namely, that a very important suit in a superior Court would have to be stayed pending the decision of a trivial suit in a Small Cause Court in which the same issue might arise between the same parties. In any case, apart from general considerations, I am of opinion that the weight of authority is against the view advanced by the petitioner's advocate and that the Court below did not act contrary to law in refusing to stay the trial of the suit.