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S. Komarappa Goundan Vs. S. Ramaswamy Goundan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1948Mad150; (1947)1MLJ365
AppellantS. Komarappa Goundan
RespondentS. Ramaswamy Goundan
Cases Referred and Mahaganapathi v. Natesa Aiyar
Excerpt:
.....;the other condition would be that the applicant for stay has no other remedy available to him in law which he can seek from a competent civil court. air1932cal751 which was a decision of a single judge who had failed to notice an earlier calcutta decision in bepin behari..........civil court. i have pointed out in that judgment that if the applicant can get the particular suit stayed under section 1 o of the code it would be incumbent upon him to adopt that course before invoking the inherent jurisdiction of this court under section 151. in the present case what is urged by the learned counsel for the respondent is (although this point was not directly or indirectly raised in the counter) that o.s. no. 32 of 1946 is a later suit and consequently an application could be made in the sub-court, salem, for its stay under section 10 of the code. it is admitted that this is a later suit but it is argued by the learned counsel for the petitioner that section 10 would not be applicable to the present case as the facts in the two cases are not common except only with.....
Judgment:
ORDER

Yahya Ali, J.

1. This is an application for stay of the trial of O.S. No. 32 of 1946 on the file of the Sub-Court, Salem, pending the disposal of S.A. No. 2081 of 1946 of this Court. In the counter filed by the respondent an objection was taken that the application is not maintainable as there is no appeal in this Court with reference to any proceeding in the suit sought to be stayed. I have examined this aspect of the matter in my judgment in Balaji Rao v. Natesa Chetty : (1947)1MLJ330 and relying on a number of cases cited therein I have come to the conclusion that if certain conditions are satisfied there can be no question that the trial of an independent suit can be stayed by this Court in the exercise of its inherent powers under Section 151 of the Code of Civil Procedure in the course of other proceedings pending before it. The conditions to be satisfied would be firstly the two pre-requisites mentioned in Section 151 of the Code itself, namely, that the stay has to be ordered in the ends of justice or to prevent abuse of the process of the Court ; the other condition would be that the applicant for stay has no other remedy available to him in law which he can seek from a competent Civil Court. I have pointed out in that judgment that if the applicant can get the particular suit stayed under Section 1 o of the Code it would be incumbent upon him to adopt that course before invoking the inherent jurisdiction of this Court under Section 151. In the present case what is urged by the learned Counsel for the respondent is (although this point was not directly or indirectly raised in the counter) that O.S. No. 32 of 1946 is a later suit and consequently an application could be made in the Sub-Court, Salem, for its stay under Section 10 of the Code. It is admitted that this is a later suit but it is argued by the learned Counsel for the petitioner that Section 10 would not be applicable to the present case as the facts in the two cases are not common except only with regard to one matter in issue relating to the partition of 1938. The premises on which this argument is based are not denied ; and it follows having regard to the decisions which I shall presently refer to, that section in of the Code cannot apply to such a case.

2. It has been held in a long series of cases of this Court that the words ' the matter in issue ' in Section 10 should be deemed to denote the entire subject in controversy. Venkatasubba Rao, J., in Sreeramulu v. Sreeramulu A.I.R. 1922 Mad. 304 Srinivasa Aiyangar, J., in Kunnamangalath v. Koman Nair (1924) 48 M.L.J. 251 and Curgenven, J., in Vellachami v. Muthiah Chetti : AIR1927Mad1132 enunciated this position differing from the Calcutta decision in Sm. Jinnat Bibi v. Howrah Jute Mills Co., Ltd. : AIR1932Cal751 which was a decision of a single Judge who had failed to notice an earlier Calcutta decision in Bepin Behari v. Jogendra Chandra A.I.R. 1917 Cal. 348. The earlier Calcutta decision was followed in the earliest of the Madras cases referred to above in Sreeramulu v. Sreeramulu A.I.R. 1922 Mad. 304. All these cases were again reviewed by Walsh, J., in two judgments both of which are reported in the same volume, Murugesa v. Balasundarammal : AIR1935Mad24 and Mahaganapathi v. Natesa Aiyar : AIR1935Mad112 . The learned Judge pointed out that the use of the definite article ' the ' in ' the matter in issue ' in Section 10 suggests that the rule will not apply where only ' a matter in issue is common'.

3. The only other question remaining to be considered is whether it is in the interests of justice to stay the trial of O.S. No. 32 of 1946. An important question in the litigation is about the genuineness of the release deed whose foundation is the alleged partition of 1938 ; and the question of the release and of the partition deed is undoubtedly common to both the cases. I therefore consider that it is in the interests of justice to stay the trial in O.S. No. 32 of 1946 on the file of the Sub-Court of Salem, as to a very large extent the disposal of the appeal one way or the other here will have an important bearing upon the material questions at issue in the suit sought to be stayed.

4. The petition is ordered.


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