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Madan Mohan Vs. Kuar Kamla NaraIn Dube - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All520
AppellantMadan Mohan
RespondentKuar Kamla NaraIn Dube
Excerpt:
- - , had distinctly remarked that putting aside the objection taken on behalf of the opposite party to the effect that no application in revision is entertainable against an interlocutory order of this sort, he would prefer to deal with the grounds taken in the application itself. and entertain the objection if satisfied that that section is applicable.sulaiman, c.j.1. this is an application in revision by a defendant in a civil suit filed in the court of the munsif of koil. a preliminary objection is taken that no revision lies. in the written statement filed in the court below a plea was taken that the present suit was barred by section 10, civil p.c. owing to the pendency of another suit in which the matter in issue was identical. the court framed an issue on this point. the third issue framed by the court below was, 'is the suit barred by section 10, civil p.c.' the defendant also made an application to the court raising the same point and praying that the hearing of the suit should be postponed on account of the previous litigation. the court by an order, dated 10th june 1932, held that the two suits were for different years and in.....
Judgment:

Sulaiman, C.J.

1. This is an application in revision by a defendant in a civil suit filed in the Court of the Munsif of Koil. A preliminary objection is taken that no revision lies. In the written statement filed in the Court below a plea was taken that the present suit was barred by Section 10, Civil P.C. owing to the pendency of another suit in which the matter in issue was identical. The Court framed an issue on this point. The third issue framed by the Court below was, 'is the suit barred by Section 10, Civil P.C.' The defendant also made an application to the Court raising the same point and praying that the hearing of the suit should be postponed on account of the previous litigation. The Court by an order, dated 10th June 1932, held that the two suits were for different years and in its opinion the subject matters in dispute in the two suits were different and therefore section 10, Civil P.C. did not apply. It also formally rejected the application for stay.

2. So far as the application for stay is concerned it cannot be seriously argued that the order rejecting it is open to revision under Section 115, Civil P.C. But it was certainly open to the defend ant to take the plea that the Court had no jurisdiction to entertain the present suit because the matter in dispute was the same as the matter in issue in a previous suit and that under Section 10, Civil P.C., the trial of the suit was barred. The Court framed an issue on this point and has decided that issue against the defedant. It seems to us that the case is exactly covered by the ruling of the Full Bench in Buddhu Lal v. Mewa Ram A.I.R. 1921 All. 1. In that case, one plea taken by the defendants was that the Court had no jurisdiction to entertain the suit. The trial Court framed an issue on that point and decided the issue of the jurisdiction against the defendants and proceeded to hoar the case. The majority of the Judges came to the conclusion that no revision lay in that case, inasmuch as the order of the Court below was a mere finding on one out of several issues arising in a suit which was still pending, and was not an order by which a case between the parties had been decided.

3. The present case is similar. The plea that the Court has no jurisdiction to entertain the suit is similar to a plea that it has at least temporarily no jurisdiction to entertain it because of the pendency of another suit. The decision of the Court below on the point that it has jurisdiction amounts to a mere finding on a question of law which was the subject matter of an issue and cannot be treated as being in itself a case decided within the meaning of Section 115, Civil P.C. The |mere fact that a separate application for a stay of the proceedings has also been dismissed would not confer jurisdiction on this Court. We are bound to follow the ruling of the Full Bench and must hold that no case has been decided.

4. There is a Single Judge ruling of this 'Court, in Sultanant Jahan Begam v. Sunder Lal A.I.R. 1920 All. 167, in which it was expressly laid down that an application under Section 10, Civil P.C. for the stay of a suit if dismissed did not amount to a case decided so as to be open to revision under Section 115, Civil P.C. That case finds support from the view subsequently expressed in the Full Bench case referred to above. Our attention has been drawn to a Full Bench ruling of the Oudh Chief Court in Sahadeo Singh v. Chanun Kuer A.I.R. 1928 Oudh. 355, in which the view expressed in Sultanant Jahan Begam's case A.I.R. 1920 All. 197 was not followed and it was mentioned that a different view had been expressed in the case of Wahidunnissa Bibi v. Zamin Ali Shah A.I.R. 1920 All. 70. We may point out that in the last mentioned case, Piggot, J., had distinctly remarked that putting aside the objection taken on behalf of the opposite party to the effect that no application in revision is entertainable against an interlocutory order of this sort, he would prefer to deal with the grounds taken in the application itself. The Full Bench decision of this Court, does not appear to have been considered in the judgments of the learned Judges of the Oudh Chief Court. We think that the case before us is covered by the principle underlying the decision of the Full Bench case and is no valid ground for distinguishing it. We may add that there seems to be no force in the contention urged on behalf of the applicant that the defendant would have no longer any remedy left if the decision of the Court below is not overruled. In case the matter comes up in appeal, it would always be open to the appellate Court to reconsider the question of the applicability of Section 10, Civil P.C. and entertain the objection if satisfied that that section is applicable.

5. The application is accordingly dismissed with costs.


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