MULCHAND RAICHAND Vs. GILL AND CO

JUDGEMENT

(1.) A Bijapur firm filed a suit in the Court of the First Class Sub-Judge at Bijapur against Gill & Co. of Bombay. Shortly afterwards Gill & Co. filed a suit in the High Court against the Bijapur Firm. The latter applied that the proceedings in the High Court suit should be stayed under Section 10 of the Civil Procedure Code, and Gill & Co. retorted by asking for an injunction restraining the Bijapur Firm from proceeding with the suit in the Bijapur Court. The Judge of this Court, who heard the matter, held that Section 10 of the Civil Procedure Code did not apply and that an injunction should be issued as asked for by Gill & Co. He ordered accordingly and the Bijapur Firm have appealed.

(2.) If Section 10 of the Code of Civil Procedure applies then the Bijapur suit must proceed, for it was first filed, and the High Court Suit must be stayed. Does Section 10 apply ? In order that it may apply there must be substantial identity between the matter in dispute in the second suit and the matter or some of the matter in dispute in the first suit; and there must be a similar substantial identity in the matter of parties. There will be found cases where it is clear that the section applies and cases of doubt. This, I think, is a case of doubt, not a clear case. We have to decide the matter on a comparison of the two plaints, for there are no written statements on the record and no issues. -The earlier suit is of a complicated character and may have to be greatly modified both as to parties and as to matter. The second suit is simple and undoubtedly the matter it relates to is involved in the earlier suit. But it is so involved that it will have to be disentangled before the Bijapur suit can proceed. It might be disentangled by separating the dispute between the Bijapur Firm and Gill & Co. from numerous other claims which do not concern the dispute with Gill & Co. It might be disentangled by omitting the latter altogether and confining the Bijapur suit to the other disputes or some or one of them. We do not know how it will be disentangled, so at the present stage I am not prepared to say that Section 10 does apply. I say this on a consideration of the circumstances of this particular dispute and not because I find any great difficulty in apprehending the general purpose of Section 10.

(3.) That being so we have to consider whether the Judge had power to direct that the Bijapur firm should refrain from proceeding with the Bijapur suit. It seems to me to matter very little whether the injunction remains or is dissolved, for, even in the latter event, I feel very little doubt that the suit in the High Court will be finished before the sait in the Bijapur Court comes to trial. That, however, savours of prophecy; so we must consider the question whether the Judge had power to make the order. The point was not raised in the lower Court or in the memo of appeal but it has been argued. The appellants counsel admits that the Judge has complete jurisdiction over the High Court suit; he can try it and dispose of it. If so, it seems to me the Judge has complete jurisdiction to make all orders appropriate to the trial and progress of the suit. I am unable to understand on what principle he can have only a partial jurisdiction for that purpose. The English law on the power of a Court of Equity to issue injunctions against persons outside the jurisdiction does not appear to limit the power, where it is to be used against a person who is properly a party to and freely contests the suit. The Calcutta cases to which we have been referred (Mungle Chand v. Gopal Ram (1906) I.L.R. 34 Cal. 101; Vulcan Iron Works v. Bishumbhur Prosad (1908) I.L.R. 36 Cal. 233 and Jumna Dass v. Earcharan Dass (1911) I.L.R. 38 Cal. 405,) were decided by single Judges and the decisions were not uniform. The Bombay case, Narayan Vithal Samant v. Jankibai (1915) I.L.R. 39 Bom. 604; 17 Bom. L.R. 655, F.B, only decides that a Judge sitting on the Original Side of the High Court cannot order a mofussil Court to stay proceedings, it leaves open the question whether he can order a party to the suit before him to refrain from prosecuting a suit in a mofussil Court.