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Mulchand Raichand Vs. Gill and Co. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Appeal No. 36 of 1919
Judge
Reported in(1919)21BOMLR963
AppellantMulchand Raichand
RespondentGill and Co.
DispositionAppeal dismissed
Excerpt:
.....dealing with such a question the court prevented double vexation, but it always exercised a discretion, where there appeared to be good ground for continuing two actions the court did not interfere. the defendant did not put in his affidavit till the day of the hearing ;and his bijapur suit with its eight defendants and vague allegations would seem to offer good opportunities for vexation and delay. under these circumstances, i can well understand an injunction being granted to restrain that vexation and delay so far as practicable......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.....
Judgment:

Heaton, J.

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 I.L.R(1906) Cal. 101; Vulcan Iron Works v. Bishumbhur Prosad I.L.R (1908) Cal. 233 and Jumna Dass v. Earcharan Dass I.L.R(1911)Cal. 405 were decided by single Judges and the decisions were not uniform. The Bombay case, Narayan Vithal Samant v. Jankibai I.L.R(1915) 39 Bom. 604; 17 Bom. L.R. 655, 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.

4. Therefore it seems to me, we have to decide the point by reason and not by authority, for there is not a clear authority; though the general trend of the English cases shows that a Judge has full power over the parties properly before him.

5. The judge must have that amount of power over the parties which is essential to a prompt and complete disposal of the suit before him. If one of the parties can obtain the production of the accounts, documents etc. in the Bijapur Court, that will greatly hamper and embarrass the trial of the Bombay suit. Therefore the Judge must have power to prevent this. The simplest and most complete method of preventing it is by an injunction against the party. But it should, I think, be in a slightly modified form and should only restrain the defendant from proceeding with the Bijapur suit in such a way as to delay or embarrass the trial of the Bombay suit.

6. Since we heard the arguments it has, in another appeal, been decided that an appeal does not lie against an order refusing an injunction. It was not argued that an appeal does not lie in this case and as we are dismissing the appeal it does not greatly matter whether it does or does not lie.

7. Substantially the appeal is dismissed and with costs.

8. I agree with my learned brother's suggestion as to the date on which the suit should be restored to the Board.

Marten, J.

1. On the first point I am of opinion, after comparing the plaints in the two suits, that the matters in issue in this suit are not 'directly and substantially in issue in the previously instituted suit' within the meaning of Section 10 of the Civil Procedure Code. I leave open the question whether under Section 10 the words ' the same parties' mean that the parties in the two suits must be the same, namely, no more and no less. If it had been necessary for me to arrive at a conclusion on this question, I should have had to take into consideration the similar words which are used in Section 11 with reference to res judicata.

2. The second point taken by the appellants is that there was no jurisdiction to order thorn not to proceed with the Bijapur suit as against the respondents. In my opinion that point is not now open to the appellants. It was not raised in the Court below, nor is it raised in the memo of appeal: and on the merits of the case-so far as they are at present before us-I see no sufficient reason why the appellants should be granted any indulgence. I would, therefore, decide this point against them on this preliminary ground alone.

3. I cannot, however, entirely ignore the proposition which was urged at considerable length by their counsel, namely, that the Court of Chancery had no jurisdiction to grant an injunction, unless the defendant either resided or carried on business within the jurisdiction. One short answer to this proposition is that it cannot apply where, as here, the defendants have been served and have appeared in the suit without protest. Thus, in Halsbury's

4. Laws of England, Vol. XVII, p. 263, Note (g), it is said:

A foreigner who has appeared to an action in an English Court gives jurisdiction to the English Court to restrain him from proceeding to litigate the same subject-matter in the Courts of his own country.

5. The authority cited in support of that proposition is Dawkins v. Simonetti (1880) 29 W.R. 228, 229, a decision of the Court of Appeal in England. That was a case where there were two suits pending for probate of the will of a deceased lady, one in England and the other in Italy. The applicant in the Italian suit was the defendant in the English suit; and in the course of his judgment the Master of the Rolls, Sir George Jessel, said as follows :-

The defendant, after the commencement of this action in England, has begun a litigation in Naples for the purpose ( so to speak ) of obtaining probate in solemn form of the will of 1872. The plaintiff has, under these circumstances, moved to restrain the defendant from proceeding with his action in the foreign Court.

The question arises whether there is any jurisdiction at all to do so. I am far from saying that where a man has appeared in an English suit he has not thereby given the Court jurisdiction to grant any proper application against him. Therefore, although it might be improper in other circumstances, it may not be improper in this suit. To what sort of cases then is this jurisdiction applicable Certainly, 1 think, in a case of 'double vexation'. Under the old practice, when a man was sued in equity as well as at law, the plaintiff was put to his election ; and it was just the game where one suit was in an English Court and the other suit in a foreign Court. The practice was to move to stay the proceeding either in the foreign Court or in the English Court. In dealing with such a question the Court prevented double vexation, but it always exercised a discretion, Where there appeared to be good ground for continuing two actions the Court did not interfere...It comes to this, then, that it is a matter of discretion, even assuming that we have jurisdiction.

6. Then, after considering the matter of convenience, the Court came to the conclusion that the Italian suit ought not to be stayed.

7. I may also refer to Dicey's Conflict of Laws (1908 Edn.), p. 44, where the learned author considers the following general principle to be sound, although he says 'its truth cannot be dogmatically laid down' (p. 45), viz.

The sovereign of a country, acting through the Courts thereof, has a right to exercise jurisdiction over any person who voluntarily submits to his jurisdiction, or, in other words, the Courts of a country are Courts of competent jurisdiction over any person who voluntarily submits to their jurisdiction.

8. Then, at p. 48, speaking of actions in personam where the defendant is not in England, he says:

The Courts of Common Law and of Equity have further always exercised jurisdiction over a defendant who appeared to, or a plaintiff who brought, an action or suit. This again is in strict conformity with the principle or test of submission.

9. So, too, the Civil Procedure Code refers in Section 20 (b) to the acquiescence of a defendant to the institution of a suit, although he may not reside or carry on business within the local limits of the Court's jurisdiction.

10. It seems to me, therefore, that it is erroneous to argue this case on the same lines as if the defendant had not appeared in this action, or, on the other hand, had appeared under protest and moved to set aside the service of the summons upon him.

11. The appellant based his argument on The Carron Iron Company v. Maclaren (1855) 5 H.L.C. 416, but there the Scottish respondents were not parties to the English action, nor had they come in and claimed the benefit of the English administration decree. They had only been served with a notice of motion in the English action just as any third party might be, who, for instance, interfered with a receiver appointed in an administration action. As to proceeding in this way by motion in the suit instead of by a separate suit, the Lord Chancellor said at p. 441 : 'The practice is fully established : its origin is matter rather of curious speculation than of practical importance.'

12. What Professor Dicey has said as to submission must of course be read with his warning at p. 212 that 'submission cannot give the Court jurisdiction to entertain an action or other proceeding which in itself lies beyond the competence or authority of the Court.' It is jurisdiction in this sense to which the Court refers when it considers whether it has any power to authorise a departure from the trusts of a trust deed, and if so, under what circumstances and to what extent (see In re New 1901) 2 Ch. 534. But that warning does not apply to the Bombay suit itself, for that is an ordinary suit brought by commission agents with leave under Clause 12 of the Letters Patent, Nor does that warning apply, I think, to the particular relief now under discussion, viz., an injunction (in effect) to prevent interference with the speedy prosecution of the Bombay suit.

13. Even, therefore, if I had considered the point as to jurisdiction was still open to the appellants, I should have decided it against them in this particular case.

14. The third and the last point is whether the jurisdiction has as a matter of discretion been properly exercised here. As to this, I see no reason to interfere, except that I agree in the variation of the form of the injunction which my brother Heaton has stated. The Bombay case came on for hearing as a Short Cause in the Vacation. The defendant did not put in his affidavit till the day of the hearing ; and his Bijapur suit with its eight defendants and vague allegations would seem to offer good opportunities for vexation and delay. Under these circumstances, I can well understand an injunction being granted to restrain that vexation and delay so far as practicable.

15. The Bombay suit was directed to be replaced on Board on 9th June after the defendant had filed his written statement. We can now direct the Prothonotary to effect this for the 5th or 12th August.

16. In the result, I agree that this appeal should be dismissed with costs.


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