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Fikson Trading Company Vs. Qamaruddin - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 5 of 1967
Judge
Reported in4(1968)DLT154
ActsCode of Civil Procedure (CPC), 1908 - Sections 10
AppellantFikson Trading Company
RespondentQamaruddin
Advocates: V.K. Kaushal,; Vijay Kishan,; R.L. Tandon and;
Cases ReferredNarain v. Raw Swarup
Excerpt:
the court adjudged that the order under section 10 of the civil procedure code, 1908 was nto an order dealing with the procedure, but it dealt with the jurisdiction of the court because when an order is passed for staying a certain suit, it effects jurisdiction of court. - - the defendant-respondent was wrongly alleging that he was the owner of the superstructures and bad let out the premises to the plaintiff. i fail to see how the decision of the suit by the court of small causes can have any effect on the present petition......operate as res-judicata in the title suit brought by the petitioner. the matter in issue in the suit instituted by the petitioner would thereforee nto a directly and substantially in issue in the suit instituted in the court of small causes. in the circumstancas, the learned subordinate judge had acted illegally or with matelial irregularity in the exercise of his jurisdiction in staying the petitioner's suit. (4) on behalf of the respondent a preliminary objection has been raised by mr. hans ra] sawhaey to the maintainability of this revision petition. ha has argued that the order made by the learned subordinate judge does nto involve any error of jurisdiction. i he learned subordinate judge had jurisdiction to decide whether suit the instituted by the petitioner should be stayed or.....
Judgment:

H. Hardy, J.

(1) The petitioner Fikson Trading Company was plaintiff in a suit instituted by it in the Court of a Subordinate Judge 1st Class Delhi seeking a declaration to the effect that the plaintiff was owner of the plto in dispute and that the defendant had no title to or interest therein. It was alleged that the plaintiff was in possession of the plto in dispute in its own right-and had put up strnctures upon it at its own expense and that.the defendant-respondent was wrongly alleging that he was the owner of the superstructures and bad let out the premises to the plaintiff.

(2) It appears that before the plaintiff brought its suit, the defendant had instituted a suit against it in the Court of Small Causes Delhi for recovery of Rs. 350.00on account of arrears of rent in respect of the property in dispute. The defendant thereforee, while denying the plaintiff's claim in the suit for declaration, raised a preliminary objection and alleged that the suit was liable to be stayed under section 10 of the Code of Civil Procedure. Defendant's objection prevailed and the learned Subordinate Judge by his order dated 2nd November, 1966 stayed the suit of the plaintiff.

(3) I he present revision petition is directed against the said older of the learned Subordinate Judge. Before me Mr. Vijav Kishan, learned counsel for the petitioner has cited a large number of case 1916 All 26 Champat v. Ttoi Rnm, Mayat Mohammad v. Bar Gaushala Ltd. Lyapur, Puvvada Srtyanarayanamatihy v. Gadepalli Sundara Rao, Mohd. Yusuf v. Abdul Wahid and tohers, Pateswari Parshad Singh v. A. S. Gilan, Ram Narain v. Ram Sarup. In all these cases it has been held that an incidental determination of an issue of title in a suit for rent of the nature cognizable in a Court of Small Causes does nto finally estop the parties to such suit from raising the same issue in a suit brought to try the title. The submission made by the learned counsel is that a plea of rest judicata on general principles, can be successfully taken in respect of judgments of Courts of exculsive jurisdiction but a Court of Small Causes cannto be regarded as one having exculsive jurisdiction to decide a particular matter. In as much as the question of title could nto be decided by the Court of Small Causes Delhi a judgment rendered by it would nto operate as res-judicata in the title suit brought by the petitioner. The matter in issue in the suit instituted by the petitioner would thereforee nto a directly and substantially in issue in the suit instituted in the Court of Small Causes. In the circumstancas, the learned Subordinate judge had acted illegally or with matelial irregularity in the exercise of his jurisdiction in staying the petitioner's suit.

(4) On behalf of the respondent a preliminary objection has been raised by Mr. Hans Ra] Sawhaey to the maintainability of this revision petition. Ha has argued that the order made by the learned Subordinate Judge does nto involve any error of jurisdiction. I he learned Subordinate Judge had jurisdiction to decide whether suit the instituted by the petitioner should be stayed or nto. If in the exercise of its justifaction any error of law or fact has been committed it is nto open to this Court in the exercise of its revisional jurisdiction under section 115.Civi procedure Code to interfere with the order made by. the. .lower court. In this connection the learned counsel has directed my attention to the three decisions of the Supreme Court in Manindra Land and Building Corporation Ltd., v. Bhutnath Banerjee, Vohra Abbasbhaii Alimahomed v. .Haji Gulamnabi Hajl Safibhi and Pandurang Dhondi Chougule and tohers v. Maruti Hart Jadhav.

(5) Thare is no doubt, as has been held by their Lordships of the Supreme 'Court, that the High Court connto while exercising its jurisdiction under section 110 Civil Procedure Code correct error? of fact however gross they may be or even eirors .of law and that it can only do so when the said errors have relation to the juridiction of the Court, to. .try the dispute itself the present case however, appears to me to be one which comes within the purview of section 115 CP.C. as the error involved therein is in my opinion, an error in relation to the jurisdiction of the Court. An order, under section 10 C. P.C is in my 'judgment nto aa order dealing with procedure; it is an ' order dealing with. the jurisdiction of the Court, because when an order is passed by the Court staying a certain suit it affects the jurisdiction of the Court. The result of the order is that the suit cannto go on .if it is stayed and when such is the case the decision must affect the jurisdiction to,the Court. The view I have taken of section 10 Civil Procedure Code is supported by a. Bench decision of the High Court of bombay in Jai Hind Iron Mart v.Tulsiram Bhagwandas where Chagia C.J. sitting with Gajendragadkar J. (as he then was) held :-

'ANorder under section 10 Civil P.C. is nto an order dealing with procedure, it is an, order dealing with the jurisdiction of the Court,because under section 10 whatever order is passed affects the jurisdiction of the Court. ' It is a mandatory provision and the suit cannto go on if it is stayed and thereforee the decision under Section 10 must affect the jurisdiction of the Court one way or the toher, and every decision which deals with the jurisdiction of the Court is a decision which affacts the right of the parties.'

(6) To the same effect are the observations of a learned single Judge of the High Court of Allahabad in Raw, Narain v. Raw Swarup 7 The toher objection raised by the learn&d; counsel for the respondent is that the revision petition has become infructuous because the suit instituted by the respondent against the petitioner in the Court of Small Causes, has since been decreed and if the learned counsel for the petitioner is right in his submission that the decree passed by the Court of Small Causes cannto operate as rest judicata in the suit filed by the petitioner, it is open to him to move the lower Court for proceeding with the suit.

(7) Learned counsel for the petitioner informs me that 'against the decree passed' by the Court of Small Causes a revision petition has al ready been admitted to hearing by this Court. In any event. I fail to see how the decision of the suit by the Court of Small Causes can have any effect on the present petition. If there is an error in tKe order of the' lower 'Court staying the suit, as I think 'there is, then the order has to be set aside and the petitioner cannto be asked to seek ' its remedy by approaching the very Court against whose order he, has come up to this Court. The fact that the suit against the petitioner has already been decreed by the Court of Small Causes is also ho bar to his getting an order from this Court. If anything, it rather helps the petitioner in asking for a direction that the lower Court should proceed' with 'the suit instituted by it.

(8) For the foregoing reasons, the revision petion is' accepted with costs.


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