1. This is an application under Section 10 of the Civil Procedure Code to stay a suit which has been instituted on the Original Side of this Court until the decision of a previously instituted suit in the Sholapur First Class Subordinate Judge's Court.
2. Mr. Coltman who appears for the opponents has taken a preliminary objection that the application should be made on the Original Side. We think he is right. He relies on Rule 344 of the High Court Original Side Rules. But in our opinion the matter is made sufficiently clear by the language of Section 10 itself. The section provides 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 between the same parties. It is a reasonable inference in our opinion that an application asking the Court not to proceed with the trial should normally be made to the Court which is actually seized of the case. According to my experience that is also in accordance with the general practice.
3. Mr. Thakor for the applicant says, that so far the case has not been assigned to any particular Judge on the Original Side. But in duel course the assignment will be made and when it is made his client can apply. As held in Mulchand Raichnd v. Gill & Co. (1919) I.L.R. 44 Bom. 283 the Judge on the Original Side could, if necessary, restrain the parties from proceeding with the suit in the mofussil Court. If the Judge declined to make an order under Section 10 an appeal would then lie to an Appellate Bench as held in Jivanlal Narsi v. Pirojshaw Vakkaria & Co. (1932) I.L.R. 57 Bom. 364
4. Mr. Thakor has relied on a case, Lachmandas Tulshiram v. The Buckingham and Carnatic Co. Ld. (1940) C.A. No. 672 of 1939, decided by Broomfield and Macklin JJ., on January 17, 1940 (Unrep.)., in which my learned brother and myself held that an Appellate Side Bench of this Court has power under Section 24 of the Code to transfer a suit pending on the Original Side of the High Court for trial to a Court in the mofussil. In coming to that conclusion we were partly influenced by the fact that there was a precedent, whereas in this case no precedent has been referred to, and we were also impressed by the circumstance that it is at least doubtful whether a Judge on the Original Side would have power to make the order of transfer which we were asked to make under Section 24. It is unnecessary, however, to decide whether we have or have not jurisdiction to make the order which we are asked to make in the present case, because we are quite satisfied that even if we have jurisdiction, we ought not to exercise it. We consider that the proper and convenient procedure is that the application should be made on the Original Side to the Judge trying the suit, and we apprehend that all sorts of difficulties might arise if applications of this kind were to be entertained on the Appellate Side.
5. For these reasons we discharge the rule with costs.