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Trikamdas Jethabhai Vs. Jivraj Kalianji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 1250 of 1941
Judge
Reported inAIR1942Bom314; (1942)44BOMLR699
AppellantTrikamdas Jethabhai
RespondentJivraj Kalianji
Excerpt:
.....fore well understand that the defendants may have postponed taking out the notice of motion in order first to have in their hands the reply. if in the earlier suit that issue is decided against the plaintiffs to the bombay suit it will operate as res judicata and the bombay suit if not earlier determined will necessarily fail. in my opinion it clearly is......represented by an advocate. the defendants filed their written statement and counter-claim in the bombay suit on november 11, 1941. the plaintiffs filed their written statement in the karwar suit on january 9, 1942. the bombay suit came on as a short cause before mr. justice chagla on november 5, 1941. a reply to the written statement was ordered within three weeks and the suit was transferred to the long cause list and was directed to be on some board on march 2, 1942, without prejudice to the right of the defendants to apply for a stay of the bombay suit.4. before coming to the question whether the matter in issue in this suit is directly and substantially in issue in the earlier suit, i will first deal with the question of delay in taking out this notice of motion which mr. m.p. amin.....
Judgment:

Blackwell, J.

1. This is a motion by the defendants asking for a stay of this suit upon the ground that there is an earlier suit between the same parties instituted in the Court of the First Class Subordinate Judge at Kar-war in which the matter in issue is directly and substantially in issue.

The application is supported by an affidavit of defendant No. 1. The facts which give rise to the question may be shortly stated as follows:--

2. The plaintiffs and the defendants carried on business in partnership from November 15, 1936, in Bombay in the name and style of Keshavlal & Co., and at Kumta and Sirsi in North Kanara in the name and style of Anandrai Himatlal & Co. Defendant No. 1 used to manage the business, of the partnership at Sirsi and defendant No. 2 used to manage the business of the partnership in Bombay. In the year 1940 one Lalchand Haribhai Gandhi, a brother-in-law of plaintiff No. 1, came to work in the Sirsi branch as a clerk. According to the defendants by his tactless conduct and association with rival traders at Sirsi he was damaging the business of the partnership and sending false reports to the plaintiffs in Bombay with the object of creating prejudice and suspicion against the defendants in the minds of the plaintiffs. In consequence of this defendant No. 2 wrote a letter to defendant No. 1 at Sirsi dated May 9, 1941, which among other things said as follows:--

Whatever it may be, may Lalchand fulfill his desire to the fullest extent which will be short lived. Give him such a medicine that he may not be able to stay in Sirsi. It may be disposed off in four days illness. If (he) harasses too much, clear the way.

3. That letter came into the hands of Lalchand who handed it over to the plaintiffs. According to the defendants defendant No. 1 was then summoned to Bombay by the plaintiffs and he and defendant No. 2 were threatened with a criminal prosecution on a charge of conspiracy to do away with Lalchand and with a charge of criminal breach of trust and defalcation in respect of the partnership accounts, and although defendants Nos. 1 and 2 denied the charges, they were coerced into executing three documents, viz. a letter of May 28, 1941, a deed of dissolution of partnership dated June 4, 1941, and a mortgage dated June 5, 1941. The letter of May 26, 1941, is exhibit No. (1) to the reply of the plaintiffs to the defendants' counter-claim in this suit. It states that on the making up of the accounts the defendants are indebted to the partnership in a sum of Rs. 8,000. The deed of dissolution of partnership although dated June 4, 1941, provides for a dissolution as from October 31, 1940, and the mortgage was to secure payment of the sum of Rs. 8,000. According to the plaintiffs no such threats were ever made and the defendants executed the documents to which I have referred because they had been guilty of serious defalcations in connection with the partnership accounts, and consequently agreed to pay Rs. 8,000 and further agreed that the partnership should be treated as dissolved as from October 31, 1940. On August 19, 1941, defendants Nos. 1 and 2 filed a suit in the Court of the First Class Subordinate Judge at Karwar for setting aside the documents to which I have referred and for a dissolution of partnership. The plaintiffs were informed of this suit by a letter dated September 3, 1941, the summons was served on plaintiffs Nos. 1, 2 and 4 in the first week of September, 1941, and on plaintiffs Nos. 3 and 5 before September 23, 1941. The suit in this High Court is a mortgage suit to enforce the mortgage which was executed as a security for the payment of Rs. 8,000. It was filed in this Court on September 23, 1941. A Commissioner in the Small Causes Court of Bombay was appointed by the Karwar Court to take an inventory of certain books of the partnership in Bombay and he held four sittings between September 4 and 9 at which the plaintiffs were represented by an advocate. The defendants filed their written statement and counter-claim in the Bombay suit on November 11, 1941. The plaintiffs filed their written statement in the Karwar suit on January 9, 1942. The Bombay suit came on as a short cause before Mr. Justice Chagla on November 5, 1941. A reply to the written statement was ordered within three weeks and the suit was transferred to the long cause list and was directed to be on some board on March 2, 1942, without prejudice to the right of the defendants to apply for a stay of the Bombay suit.

4. Before coming to the question whether the matter in issue in this suit is directly and substantially in issue in the earlier suit, I will first deal with the question of delay in taking out this notice of motion which Mr. M.P. Amin has urged as a ground for refusing to stay this suit. It is true that the defendants in this suit filed their written statement on November 11, 1941. The plaintiffs however did not file their reply until March 23, 1942, although I am told that a copy of it was supplied to the defendants on or about March 9, 1942. When a motion of this character comes before the Court it is very usual for the Judge to ask to see the pleadings in both the suits in order that he may determine there from whether the matter in issue in the two suits is directly and substantially the same. I can there fore well understand that the defendants may have postponed taking out the notice of motion in order first to have in their hands the reply. Be that as it may, the words of Section 10 of the Civil Procedure Code are mandatory and require that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit. In Wahid-un-nissa Dibi v. Znmin Al Shah (1920) I.L.R. 42 All. 290, the Court stayed a suit the trial of which had already commenced when an application was made to the Court to stay the suit under Section 10 of the Civil Procedure Code. In my opinion there is no substance in the point of delay which Mr. Amin has urged.

5. A copy of the plaint in the Karwar suit is annexed as exhibit No. (2) to the written statement in this case. It sets out the facts to which I have already referred in consequence of which the defendants alleged that they were coerced and induced to put their signatures to the documents in question. The plaintiffs in that suit ask that those documents may be set aside as having been obtained without any consideration and under undue influence, coercion and threats. They ask for an injunction prohibiting the defendants from entering and taking possession of the suit properties in enforcement of the terms of the said documents and they pray for a declaration that the partnership still continues and that the alleged dissolution of partnership from the end of October, 1940, is not binding upon them, and that as they intend to retire the partnership may be dissolved and accounts may be ordered. The written statement in that suit is annexed to the affidavit of defendant No. 1 in support of this notice of motion as exhibit No. (1). It denies all the allegations in the plaint and alleges that the plaintiffs executed the documents in question of their own free will and that the plaintiffs in the Karwar suit are not entitled to any of the reliefs claimed.

6. The present suit is, as I have already indicated, a mortgage suit pure and simple in which the plaintiffs seek to enforce the mortgage deed of June 5, 1941. By their written statement the defendants set out the facts to which I have already referred, and claim that neither the mortgage deed, nor the letter, nor the deed of dissolution are binding upon them, and they counter-claim that the deed of mortgage may be declared void and inoperative and that it may be cancelled.

7. Mr. Amin concedes on behalf of the plaintiffs that the issue as to whether the mortgage is or is not binding is the same in both suits. He however contends that the subject-matter of the earlier suit is different from that of the present suit in that it asks for a dissolution of partnership. It is to be borne in mind that the words 'for the same relief' which occurred after the words 'previously instituted suit' in the earlier Code have been omitted from the present Section 10 of the Civil Procedure Code. I have to determine whether the matter in issue in this suit is directly and substantially in issue in the earlier suit. The matter in issue in the Bombay suit is whether the mortgage deed is binding or whether it was procured by coercion. That is also in issue in the earlier suit. If in the earlier suit that issue is decided against the plaintiffs to the Bombay suit it will operate as res judicata and the Bombay suit if not earlier determined will necessarily fail. In my opinion it is immaterial that the relief claimed in the earlier suit is of a different character from the relief claimed in the present suit. The real question is whether the matter in issue in the Bombay suit is directly and substantially in issue in the earlier suit. In my opinion it clearly is. In the Allahabad case, viz. Wahid-un-nissa Bibi z. Zamin Al Shah, which I have already cited, Mr. Justice Piggott said (page. 292):--

Nor is it an adequate plea against the order in question to say that there were issues for trial in the former suit which are not in issue in the present suit. The real question is whether the issue as to the validity of the deed of gift requires to be tried in the present suit, and whether it either can or ought to be tried while the appeal is pending in this Court against the decision in the former suit.

8. I may also refer to Durgaprasad v. Kantichandra Mukherji I.L.R. (1934) 61 Cal. 670 where it was pointed out that the test whether a previously instituted suit and a subsequently instituted suit are 'parallel', as the Court put it, is that if the first was determined, the matters raised in the second suit would be res judicata by reason of the decision of the prior suit.

9. For the reasons which I have given I am of opinion that the matter in issue in the Bombay suit is directly and substantially in issue in the previously instituted suit. Mr. Amin has urged that the Bombay suit is ripe for hearing and that it will be a great hardship to the plaintiffs to have it stayed. The words of Section 10 of the Civil Procedure Code are however mandatory. I therefore stay this suit. The defendants will have the costs of this notice of motion, viz. Rs. 175.


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