Amberson Marten, Kt., C.J.
1. Yesterday we delivered judgment in appeal No. 57 of 1928 (Suit No. 266 of 1928) between the same parties. Our judgments in that appeal may be referred to for the general position between these two brothers who are engaged in this complicated litigation. It also exemplifies that they are each carrying on business as sole proprietor in Bombay, Calcutta, Cawnpore and Lahore.
2. This present appeal is is another suit No. 798 of 1928 from an order made by Sir Norman Kemp on January 29, 1929, directing that this suit be stayed, and ordering that the plaintiff be at liberty to file a fresh suit in Calcutta or Cawnpore or at both places. It was further ordered that the plaintiff do pay to the defendants their costs of the suit. That order was founded substantially on the ground that the suit was vexatious and oppressive and an abuse of the process of the Court. The learned Judge also doubted whether this Court had any jurisdiction to hear it at all.
3. What the plaintiff did was that on March 12, 1929, he filed a suit in the Cawnpore Court, so he/informs us. Then, on April 2, 1929, the memorandum of appeal in the present suit was filed, and the first question that arises is what does it mean Is it an appeal merely against so much of the learned Judge's order as directed the appellant to pay the costs Or is it an appeal against the whole order, viz., directing a stay and also the question of costs ?
4. The memo, of appeal begins :-
The appellant abovenamed appeals against the order of the Hon'ble Mr. Justice Kemp passed herein on January 29, 1929, directing the appellant to pay the respondents' costs of the suit, on the following amongst other grounds.
5. Then No. 1, ' The Order of the learned Judge directing stay of the suit is contrary to law on the following grounds.' Then grounds (a) to (s) are set out. Then in para. (2) he claims that the application for stay of the suit having been made by the defendants at a very late stage of the proceedings, the defendants were not entitled to any costs. Then paras. 3, 4, 5 and 6 state that the order was made under a misapprehension of facts, was wrong in principle, was unjust and erroneous, and contrary to law.
6. In opening the appeal the learned Advocate General said that the appeal was only as to costs. I thought the word he used was ' mainly,' but that is not the recollection of my learned brother nor of counsel at the bar, and therefore I accept the word ' only.' Subsequently, in reply to a question raised by the Bench, counsel for the respondents stated that the first time he knew that the appeal was confined to costs was when the Advocate General opened. Today the point has been further elaborated, and counsel for the respondents urged that the appeal was really against the stay as well as against costs, and he quoted for instance ground No. 1. We have, therefore, had the matter further elucidated by asking both counsel to state their position. The learned Advocate General then said that his memo, of appeal was only intended to apply to costs, and did only apply to costs, and that his client only appeals against the costs and not against the stay order. His reason for doing that is that in order to avoid delay he had already started a suit in Cawnpore, and therefore he does not want the order for the stay removed.
7. Then the Advocate General is met with this difficulty, viz., that on the question of costs he is asking us to review all the grounds on which the learned Judge granted a stay of this suit. In other words, he is asking us to go into all the grounds which the learned Judge has found, and to hold that the learned Judge was wrong from beginning to end, that the suit was not oppressive or vexatious or an abuse of the process of the Court, and that none of the other grounds relied on by the learned Judge are correct in law or in fact, and that, moreover, he was under a distinct misapprehension of the facts.
8. The Advocate General has even gone so far as to ask us to admit further evidence by affidavit, under Order XLI, Rule 27, of matters which arose after the learned Judge's order was made, to shew, as he says, that the learned Judge was misled by the defendants on one particular point, viz., that all the witnesses to be called would be witnesses out of Bombay, whereas in fact in the Cawnpore suit his opponents have obtained a commission to examine certain witnesses in Bombay. That application for further evidence we have not admitted, and it is unnecessary to deal with it further.
9. But on the question of principle I fail to see how the appellate Court can be asked in effect to allow the learned Judge's decision on the main point of dispute in the case to stand and yet to say that for the mere purpose of costs, it should be treated as a wrong decision. It seems to me that one cannot blow hot and cold in this way.
10. As regards the argument of inconvenience which the Advocate General put forward, that was entirely a matter for his own clients. If an application had been made to this Court to expedite the hearing of this particular appeal, there would have been no difficulty in getting it heard promptly, for the hearing of original side appeals is well up to date. Indeed, it does not lie in his client's mouth to complain of delay. Although the suit was only filed on March 27, 1928, the trial commenced in September 1928, notwithstanding the intervening' long vacation. Judgment was given on January 29, 1929, but his client only filed his appeal paper book on October 28, 1929. Consequently, his appeal has been heard within three weeks of its being ready.
11. We have asked for any authority in support of this startling proposition-so it seems to us-that has been put forward by the learned Advocate General. We have been referred to two cases which, with all respect, seem to me to have nothing whatever to do with the point we have to determine here. The first case of Laxmibai v. Radhabai (1917) 20 Bom. L.R. 905 is a decision of Sir Basil Scott and Mr. Justice Batchelor. There what the trial Judge had done was to throw upon the plaintiff the costs of the unsuccessful defendant where the plaintiff had been guilty of no misconduct (see page 909). This is exactly the converse of the present case. The defendants here wore not unsuccessful. They were successful, and therefore there was no question of making the successful party pay the costs of the unsuccessful party.
12. As regards the other case, Ranchordas Vikhalclas v. Bai Kasi I.L.R. (1892) 16 Bom. 676 there the trial Court had ordered the plaintiff' to pay the costs of certain defendants because they were hold to be unnecessary parties to the suit, and the appellate judgment proceeds (p. 682):-
It is clear that the Court was in error in holding that the respondents were unnecessarily made parties to the suit. They were actually in possession, and, therefore, were properly made defendants.
13. Naturally in these circumstances the Court of Appeal was in a position to review the order that was made.
14. But in the present case until we are in a position to set aside the learned Judge's order as to a stay, we are not in a position to challenge the grounds on which he made that order for a stay. On a mere question of costs we can only challenge those grounds, if we are also in a position to challenge them as regards the main order for a stay. Therefore, on principle we think that the appellant cannot blow hot and cold in this way, and that having accepted the stay order and acted under it, he cannot now challenge the grounds on which that order was made.
15. I wish, however, to make it clear that in dismissing this appeal with costs, we in no way express any opinion on the reasons and the findings in law which the learned Judge arrived at. And for this very good reason, that no appeal from his finding as to a stay is in our opinion now before us. I, accordingly, wish to give this warning that if the appeal as to a stay had been before us, it may be that this Court would have eventually held that the decision in Jethabhai Versey & Co. v. Amarchand Madhavji & Co. : AIR1924Bom90 in no way governs the facts of this particular case, and that we should have been unable to confirm the order for a stay made in the present case.
16. It is clear, as pointed out in Jethabhai Versey & Co. v. Amarchand Madhavji & Co., that the inherent jurisdiction of the Court as to the stay of an action, must be exercised with the greatest caution, and that before on(c) relies on the authority of any other case, one must consider very closely the facts of the particular case before one.
17. For these reasons I would hold that the appeal be dismissed with costs.
18. I agree. In my opinion it cannot be doubted that if the order made by the learned Judge staying this suit was right, his order for costs could not be challenged. It would not be possible for this Court to review his order for costs without going into the propriety of the order made by him staying this suit, inasmuch as the exercise by him of his discretion as to costs must depend upon the propriety of that order.
19. In the present case the plaintiff has accepted the order and has acted upon it. It is plain that having launched a suit in Bombay, he could not launch another suit in Cawnpore upon the same cause of action unless or until his Bombay suit had been stayed. It was stayed by the learned Judge's order which gave the plaintiff liberty to file a fresh suit in Cawnpore. Pursuant to that order the plaintiff filed that suit. He does not appeal against the order staying the suit. Indeed it is difficult to see how he could appeal against that order, inasmuch an before filing his memorandum of appeal, he had already acted on the order and filed a suit in Cawnpore.
20. In these circumstances, it seems to me impossible for the appellant to contend that the order as to costs was wrong. I agree that the appeal should be dismissed with costs.