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V.R. Balakrishnan Nadar Vs. R. Velayudhan Nadar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1609 of 1979-G
Judge
Reported inAIR1980Ker161
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10
AppellantV.R. Balakrishnan Nadar
RespondentR. Velayudhan Nadar and ors.
Appellant Advocate K.S. Rajamony and; A. Shahul Hameed, Advs.
Respondent Advocate P. Sukumaran Nair and; A.K. Chinnan, Advs.
DispositionPetition dismissed
Cases ReferredFakir Singh v. Secretary of State
Excerpt:
- - iii read as a whole clearly showed that 'trial' was used as meaning the entire proceedings before the tribunal from time when the petition was transferred to it under section 86 until the pronouncement of the award. on the date fixed the plaintiff failed to appear and the learned judge dismissed the suit......2. section 10 c. p. c. states 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 etc. the question here is whether it could be said that in passing on order on an interlocutory application, the court would be proceeding with the trial of the suit. 3. in senaji kapurchand v. pannaji devichand air 1922 bom 276 a division bench of the bombay high court said : 'but under section 10 it is provided 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 thesame parties. that does not prevent the court from making interlocutory orders, such as orders.....
Judgment:
ORDER

T. Chandrasekhara Menon, J.

1. The only question that arises in this civil revision petition is whether a court has jurisdiction to pass an order on an interlocutory application --in this case two interlocutory applications filed for amendment of the plaint and for the appointment of a receiver -- because of the stay of the filing of the suit under Section 10 C, P. C. The court below held that the court has jurisdiction to pass order on such application. The petitioner who is the first defendant in the suit questions that decision.

2. Section 10 C. P. C. states 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 etc. The question here is whether it could be said that in passing on order on an interlocutory application, the court would be proceeding with the trial of the suit.

3. In Senaji Kapurchand v. Pannaji Devichand AIR 1922 Bom 276 a Division Bench of the Bombay High Court said :

'But under Section 10 it is provided 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 thesame parties. That does not prevent the Court from making interlocutory orders, such as orders for a Receiver, or an injunction, or, as in this case, an order for attachment before judgment.'

The Allahabad High Court in Smt. Kulsumum Nisan v. Mohammad Farooq AIR 1969 All 479 also takes the same view. The learned Judge said in that case ;

'The object underlying the provisions of Section 10 C. P. C. is to prevent simultaneous trial of two suits in which the matter in issue between the parties is directly and substantially the same. An interlocutory order in the nature of issue of injunction, or appointment of a receiver, or an order of attachment before judgment cannot be regarded as a matter affecting the trial of the suit. It seems to me that the question as to whether a party should or should not be impleaded does not encroach on the merits of the controversy between the parties. It is a matter of a formal nature and cannot in any way determine their respective rights.'

In that case some reliance had been placed in a decision of the Supreme Court in Harish Chandra Bajpai v. Triloki Singh, AIR 1957 SC 444 wherein it was observed that 'trial' was used as meaning the entire proceedings before the tribunal from the time when the petition was transferred to it under Sec. 86 of the Representation of the People Act until the pronouncement of the award. In the Supreme Court case the question turned on the interpretation of Section 83 as to whether the tribunal seized with the election petition was empowered to order amendment of the petition under Section 90(2) of the Act. Before the Supreme Court it was contended that Section 90(2) extends the provisions of the Civil P. C. to proceedings before tribunals only in respect of procedure and that power to order amendment under Order VI, Rule 17 is not within the extension.

The Supreme Court overruled the objection, holding that the provisions of Chap. III read as a whole clearly showed that 'trial' was used as meaning the entire proceedings before the tribunal from time when the petition was transferred to it under Section 86 until the pronouncement of the award. So far as the word 'trial' used in Section 88(3) of the Representation of the People Act is concerned, it was construed by the Supreme Court in the context of the various provisions contained in Chapter III of the said Act and the analogy could not be extended to a suit which has been stayed under Section 10 Civil P. C.

4. The same view has been taken in regard to passing interlocutory orders by the Mysore High Court in Baburao Vithalrao Sulunke v. Kadarappa Prasappa Dabhannavar AIR 1974 Mys 63. In the decision of the Lahore High Court in Fakir Singh v. Secretary of State AIR 1928 Lah 751 (2) it had been held that once a court has made an order under Section 10 staying the proceedings in a suit it has no jurisdiction to fix further dates for the hearing of the suit unless moved to do so by either party. In that case in spite of the fact that the suit had been stayed the Civil Judge fixed a date for the hearing of the suit. On the date fixed the plaintiff failed to appear and the learned Judge dismissed the suit. It was held by the Lahore High Court that the order was without jurisdiction. That decision is in no way helpful to the decision in this case. Certainly the correctness of that decision is beyond controversy.

5. I find no error in the view taken by the court below. This C. R. P. is dismissed. I make no order as to costs, in the circumstances of the case.

A carbon copy of this order will be given to the parties on payment of requisite charges.


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