1. Mr. Desai, on behalf of the defendant, admits that this application is unprecedented. He relies, however, upon the following remarks of the learned Chief Justice in granting the special leave:
The result is that though the defendant may be perfectly right, yet the parties are to be exposed to the serious expense and delay which the trial of the case on its merits will involve, I say this because if the suit is proceeded with it will necessarily involve something in the nature of an account both of capital and income Of the large possessions of the defendant, which are scattered over different parts of India....
If, therefore, there is a substantial preliminary issue to be decided, which may render this long and expensive trial quite unnecessary, then with all respect to the judgment of Sir Norman Macleod and Mr. Justice Coyajee, I think it ought to be determined before that expense is incurred. I wish to make it elear that if the defendant's objection succeeds, then the suit will fail entirely and will be dismissed. So that in the event of this preliminary issue being decided in one way, it will make a final ending of the suit, although I quite follow that if it is decided in the other way, the suit will proceed.
2. It is contended by Mr. Desai that the object of the Appeal Court in granting special leave to appeal to the Privy Council would be stultified if the present proceedings were not forthwith stayed and that the remarks of the learned Chief Justice imply that the proceedings here should be stayed. I do not, however, find a direction in the judgment of the Appeal Court to the lower Court to stay the proceedings in the suit pending the appeal to the Privy Council, and have, therefore, considered myself to be at liberty to examine the application on its merits.
3. It is contended by Mr. Jinnah on behalf of the plaintiff that this Court has no jurisdiction to stay proceedings in the suit and the only Court now competent to do so, would be the Privy Council. He relies upon the case of Lalitessur Singh v. Bha-bessur Singh (1909) 13 C.W.N. 690, In that case the Appeal Court of Calcutta held that the High Court had no power to stay proceedings in a But following a preliminary decree for partition against which it had granted leave to appeal to the Privy Council. The Privy Council, which had seizin of the appeal, could alone do so. This case was followed by the Appeal Court of Allahabad in Ram Narain v. Harnam Das I.L.R. (1919) All. 170.
4. The difficulty I feel about applying the principle of the above two decisions to the case before me arises from the fact that I have not passed any preliminary decree under which any proceedings are being taken which I am called upon to stay. Whether my decision amounts to a preliminary or interlocutory judgment from which an appeal would He, is now a matter for the Privy Council to determine. So far as I can see there are no proceedings under my decision on the preliminary issue which I am asked to stay, unless it be that by not finding on the issue in favour of the defendant, 1 have impliedly ordered that the suit do proceed. The suit would have proceeded in due course with, out any such order from me.
5. In re J.B. Palmer's Application (1882) 22 Ch. D. 88, appears to me to be a case which is applicable to the point here. That was a case under the Trade-Marks Registration Act, 1875 (English). A trade mark was registered under that Act in favour of Palmer & Son. Messrs. Bryant & May applied for its cancellation on the ground that it was not a proper trade mark. A preliminary issue was tried by Chitty J. as to whether the application was not time-barred. The learned Judge dismissed the application holding on the preliminary issue that the period of five years which had elapsed since Palmer & Co. had registered the trade-mark was a bar to the application. In appeal from that order, the Court of Appeal overruled the objection from lapse of time, and remitted the case to Chitty J. to hear the evidence and decide the question of fact between the parties. From this decision of the Court of Appeal, Palmer & Co. appealed to the House of Lords on the question of law decided by the Court of Appeal, and moved the Court of Appeal to stay proceedings before Chitty J. pending the appeal. The application was made on the ground of convenience and saving of expense, and it was urged that the whole of the expense of going into evidence as to questions of facts may turn out to be useless if the House of Lords took the same view as the Court of first instance had done, Jessel M.R., in delivering the judgment of the Court of Appeal, remarked that the application was entirely unprecedented, and no authority had been produced. The objection which had been taken in the case was very analogous to a demurrer, and it was always the practice that the trial of the issues of fact should go on pending an appeal on a point of law raised by demurrer. The Master of the Rolls further remarked (p. 89):-.The Respondents in this case took a preliminary objection on a point of law, which respondents can always do. The Judge allowed the objection, which he was quite justified in doing. He might have directed the evidence to be gone into, and reserved the objection; he did not do so, but decided the point of law. It was no doubt a difficult point of law, and the Appellants, being dissatisfied, appealed against his decision. The Court of Appeal reversed the Judge's decision, and held that he ought to have overruled the legal objection; and they directed the trial of the issues of fact to proceed before him. If the Judge had taken the same view of the law in the first instance as the Court of Appeal afterwarda did, he would have heard the matter upon evidence at the time, and the trial would have been over long ago. That being so, the Respondents appeal to the House of Lords, which they have a perfect right to do, and they now desire to stay the trial of the issues which ought to have been over long ago, upon the ground-and that is the only ground that I have heard-that if they succeed in their legal objection the costs of the trial will be thrown away. But the applicants are perfectly solvent, so that if the Respondents succeed they will not lose anything, But what will be the result on the other hand if they fail in their appeal? If the House of Lords affirm the decision of this Court the trial will be delayed perhaps two years, and perhaps the applioants willlose oral evidence, which is of iuaporanee to them. It appears to me that this would be a serious injustice to them; and no real hardship will be done to the Respondents in allowing the trial to proceed in a case where they have solvent people to deal with.
6. Cotton L.J. in a concurring judgement remarked (p. 90)
No doubt the Gourd has jurisdiction to make the order, and would exercise it in a proper case.... No doubt the House of Lords may take a different view, but that is no reason for depriving the applicants of what is their right. They wish to go on with the proceedings, and this Court has decided that they have a right to do so; and the mere fact of extra costs being incurred, which may be useless if the House of Lords decide in favour of the appeal, is no sufficient reason for restraining them.
7. It is clear from the above case that the Court would have jurisdiction to accede to such an application in a fit case. As I am invited to exercise my discretion in this matter in defendant's favour, I must consider how far such an order would prejudice the plaintiff' and how far its refusal would prejudice the defendant. The refusal of the application can prejudice the defendant, in one possible way only, viz. that he will have to incur further costs which, should he ultimately succeed on the preliminary issue, would become unnecessary. As against that the procedure of our Courts provides that the successful party should generally get his costs from the party who has failed. It is nowhere stated in the affidavits in support of the notice of motion that the plaintiff is not a solvent party. No doubt from the nature of her claim she pleads- poverty and asks for an enhanced maintenance on the ground that she is unable out of her present maintenance, allowance to support herself in a manner that her position in life would require. It does not follow from this that should the defendant obtain an order of costs against the plaintiff, he will not be able to recover the amount from her. In the various interlocutory applications that have been made before me from time to time, I have on some occasions ordered costs against the plaintiff and the defendant has recovered them from the plaintiff without trouble or difficulty.
8. From the point of view of the Court no doubt much public time would be saved if this suit were stayed, and the preliminary point taken by the defendant ultimately decided in his favour. But the Court will not speculate in this manner regarding the ultimate result of the suit, The plaintiff is as much entitled to occupy the Court's time as any other suitor, and no valid cause is shown why the hearing of her suit should be put off as sought by the defendant by this application.
9. This Court has no reason to feel lack of confidence in its decision on the issue. The Appeal Court has held that no appeal lies from that decision. The certificate granting leave to the defendant to appeal to the Privy Council is restricted to the question whether an appeal lies from that decision. His success in the Privy Council appeal cannot result in a final disposal of the suit in his favour but there will have to be a remand to the lower appellate Court to rehear the appeal on its merits. It is not certain that on rehearing the appeal on merits the Appeal Court will come to a different conclusion from that of the trial Court.
10. The prejudice to the plaintiff, should proceedings be stayed, would be considerable. Her claim to enhanced maintenance is a personal claim and should she be entitled to it, she must not be deprived of the enjoyment of that right any longer than is absolutely necessary for the parties to get ready for the hearing. The suit is ripe for hearing. There have been great delays on the part of the defendant already. The delays certainly are in favour of the defendant as, should the plaintiff's ease succeed, the defendant thereby puts off the day when the enhanced maintenance would come into operation. There is also the risk to the plaintiff by such delays of losing some of her evidence which may now be available to her.
11. Under these circumstances, I am of opinion that this application should not be acceded to. I discharge the notice of motion with costs.