1952 (7) TMI 18 - HC - Indian Laws

Appeal allowed, Bombay suit stayed under Section 10, appellants awarded costs.

Jai Hind Iron Mart Versus Tulsiram Bhagwandas

The appeal was allowed, setting aside the lower court's order, and the Bombay suit was ordered to be stayed under Section 10 until the final disposal of ... - Issues Involved:1. Whether the refusal to issue an injunction restraining the respondents from proceeding with the Calcutta suit was justified.2. Whether the refusal to stay the Bombay suit under Section 10 of the Civil Procedure Code (CPC) was justified.Issue-wise Detailed Analysis:1. Refusal to Issue an Injunction:The respondents filed a suit in the Calcutta High Court on 4-2-1952, and the appellants filed a suit in the Bombay High Court on 8-2-1952. The appellants sought an injunction to restrain the respondents from proceeding with the Calcutta suit, while the respondents sought to stay the Bombay suit under Section 10 of the CPC. The learned Judge refused to issue an injunction and dismissed the motion to stay the Bombay suit. The appeal against the refusal to issue an injunction was based on the argument that the decision did not constitute a 'judgment' within the meaning of Clause 15 of the Letters Patent. The court referenced the case of 'Venichand v. Lakhmichand Maneckchand' and concluded that the decision did not affect the merits of the question between the parties by determining some right or liability. Therefore, the appeal No. 58 of 1952 was dismissed as it did not lie.2. Refusal to Stay the Bombay Suit under Section 10 CPC:The key question was whether the matter in issue in the Bombay suit was directly and substantially in issue in the previously instituted Calcutta suit. The Calcutta suit was based on a contract dated 4-11-1951, where the appellants claimed the contract was for the sale of 1898 tyres, and the respondents failed to take delivery, leading to a suit for damages. The Bombay suit, based on the same contract, had the respondents claiming they contracted to purchase only 1,600 tyres and that the tyres delivered were not according to the contract quality. They sought a refund and damages for non-delivery. The court emphasized that Section 10 does not require an identity of issues but a substantial identity. It referenced the case 'Sankalchand, Shah & Co. v. J. Prakash & Co.' and clarified that the test is whether the decision in the first suit would constitute res judicata for the second suit. The court concluded that the decision of the Calcutta High Court on the contract terms would bind the parties and effectively put an end to the Bombay suit. Thus, the learned Judge below erred in not applying Section 10.The Advocate General's contention on the maintainability of the appeal was addressed by referencing the decision in 'Jivanlal Narsi v. Pirojshaw Vakharia & Co.', which held that an order under Section 10 affects the jurisdiction of the court and thus the rights of the parties. The court found no reason to reconsider this decision.Conclusion:The appeal was allowed, the order of the learned Judge below was set aside, and the Bombay suit was ordered to be stayed under Section 10 until the final disposal of the Calcutta suit. The appellants were awarded costs for both the appeal and the notice of motion in the lower court.