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Mirta Lina Pr. Ltd. Vs. the Finlay Mills Ltd. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 961 of 1979
Judge
Reported inAIR1982Cal41
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10, 11 and 151 - Order 39; ;West Bengal Court-Fees Act, 1970 - Section 7; ;Suits Valuation Act, 1887 - Section 8
AppellantMirta Lina Pr. Ltd.
RespondentThe Finlay Mills Ltd. and anr.
Appellant AdvocateJ.N. Roy, Adv.
Respondent AdvocateS.K. Kapur, Adv.
DispositionApplication dismissed
Cases ReferredMonoharlal Chopra v. Seth Hiralal
Excerpt:
- ordermonjula bose, j. 1. the short point requiring determination in this application is whether the applicants, finlay mills ltd. and the gold mohar mills ltd., are entitled to an order of stay of a subsequent suit filed in this court by the plaintiff co. under section 10 of the civil p. c. to appreciate the contentions that have been raised before the court, it will be necessary to give a very brief resume of the material facts not in dispute. the plaintiffs are the tenants of the entire ground floor of premises no. 12-b/1.park street, calcutta and the defendant mills are in occupation of the premises under an agreement dt. dec. 26, 1975, contended by the plaintiff company to be a leave and licence agreement, whilst the defendants asserting that a greater interest is created in its.....
Judgment:
ORDER

Monjula Bose, J.

1. The short point requiring determination in this application is whether the applicants, Finlay Mills Ltd. and the Gold Mohar Mills Ltd., are entitled to an order of stay of a subsequent suit filed in this Court by the plaintiff Co. under Section 10 of the Civil P. C. To appreciate the contentions that have been raised before the Court, it will be necessary to give a very brief resume of the material facts not in dispute. The plaintiffs are the tenants of the entire ground floor of premises No. 12-B/1.

Park Street, Calcutta and the defendant Mills are in occupation of the premises under an agreement dt. Dec. 26, 1975, contended by the plaintiff company to be a leave and licence agreement, whilst the defendants asserting that a greater interest is created in its favour thereunder.

2. On or about Nov. 8, 1979 the applicants filed Title Suit No. 2013 of 1979 in the City Civil Court at Calcutta, inter alia, praying for a declaration that the notice dt. Aug. 29. 1979 issued by the respondent Co. is invalid, inoperative and void ab initio and that the agreement dt. Dec. 26, 1975 is still subsisting and that the defendant No. 1 is not entitled to unilaterally terminate the same or to revoke the grant made thereunder. A permanent injunction restraining the defendants from disturbing and/ or interfering with possession of the plaintiffs in the suit premises and from disturbing or interfering with the plaintiff's enjoyment of all rights, agreements and facilities in connection therewith and from giving any further effect to the impugned notice in breach of the agreement was also sought.

3. On Dec. 14, 1979 the present suit was filed in this Court by the respondent Co. claiming inter alia, a declaration that the plaintiffs tenancy of 12-B/1. Park Street, Calcutta is not subject to or incumbered by any sub-tenancy in favour of the defendants and its possession of the suit premises, mesne profits and/or compensation for use and occupation of the suit premises by the defendants from Dec. 1, 1979 until possession is delivered. It is contended by learned Counsel for the applicants that taking any further steps in this suit would incur unnecessary costs and result in multiplicity of judicial proceedings as the principal issue likely to arise in both the suits are identical and substantially the same matters are in issue. Alternatively, if the application is not maintainable under Section 10, an order of stay should be passed under Order 39 of the Code and/or under Section 151 invoking the Court's inherent jurisdiction so to do.

4. Mr. J. N. Roy, Ld. Counsel for the applicants, in support of his submissions draws my attention to the two plaints filed, and submits that it is apparent therefrom that the parties are the game persons although admittedly in the earlier suit filed by the applicants the two Directors of the defendant Co. were made party-defendants along with the defendant Co. He contends that the Terms of Agreement whereunder the applicant was put in occupation of the suit premises is an issue, which is required to be considered in both the suits. The question thus is whether determination of the first suit will make the material questions in the second suit res judicata? Relying on the averments in the plaint filed in the City Civil Court suit, he contends that the validity of the notice dt. Aug. 29, 1979 as also the scope of the agreement between the parties is required to be construed in the City Civil Court proceedings and in that context relief is sought claiming that the notice dt. Aug. 29, 1979 is void and inoperative, that the respondents are not entitled to unilaterally terminate the agreement entered upon and that the applicants are legitimately entitled to a declaration that the agreement dt. Dec. 26, 1975 is still subsisting, as also an injunction restraining the defendants from interfering with or disturbing their possession. He points out that in the said earlier proceedings an interim order was obtained on Nov. 9, 1979, and this factor is an additional point to be considered when determining this application for stay.

Section 10 of the C. P. C. reads as follows:--'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, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or in any other Court in India having jurisdiction to grant: the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

Explanation:-- The pendency of a suit in a foreign Court does not preclude Courts in India from trying a suit 'founded on the same cause of action.'

5. Construing this section Mr. Roy contends that the provisions thereof apply with full force to the facts of the instant case and the section contemplates that the previously instituted suit must be a proper suit in a Court which would be competent to grant the relief claimed and the question to be considered as such, is whether the City Civil Court has jurisdiction to deal with the prayers made in the City Civil Court suit.

6. placing reliance on Shorab Modi v. Mansata Film Distributors and Arun General Industries Ltd v. Rishabh ., reported in : AIR1957Cal727 and : AIR1972Cal128 he next contends that the matters directly and substantially in issue in both suits need not be of complete identity of disputes and/or parties and the ratio of that case is that the matter in issue in the two suits may be substantially the same though different reliefs may have been claimed by two different plaintiffs on the basis of their respective cases and/or causes of action. The fact that one is a suit under the agreement entered into by the parties and the other is the suit dehors the agreement is of no consequence. In that case the Court also construed the words 'same parties' used in Section 10 and held the same meant parties as between whom the matter substantially in issue has arisen and has to be decided. The fact that there was an additional party in the suit filed subsequently did not, by itself, make Section 10 inapplicable as the Court viewed that no separate issue had been joined between the additional, party and the plaintiffs so as to make Section 10 inapplicable. Mr. Roy stresses on the fact that the only aspect required to be considered when considering a case under Section 10 of the C. P. C. is whether there is a possibility of conflicting decisions if the subsequent suit filed is not stayed.

7. Relying on Manohar Lal Chopra v. Seth Hiralal reported in : AIR1962SC527 . he contends that the provisions of Section 10 are clear, definite and mandatory and the Court is prohibited from proceeding with trial of the second suit in certain specified conditions. He next cites, : AIR1971Cal345 as an authority for the proposition that the test in an application under Section 10 is whether the matter in the later suit will be res judicata if the earlier suit is taken to have been decreed as prayed for in the plaint. In that case the Court considering that the validity of an agreement was in issue in both suits initer alia found that the subsequent suit would be hit by the principles of constructive res judicata and held Section 10 to be applicable, and thus observed :-- (at p. 347).

'In my opinion, the test to be applied in deciding an application under Section 10 of the C. P. C. is whether the matter in the later suit will be res judicata if the prior suit is taken to have been decreed in the manner as prayed in the plaint ..'........'

In that case furthermore relying upon the decision reported in : AIR1957Cal727 it was inter alia held that the joinder of an additional party raised no separate and substantial issue as between the additional party and the plaintiff so as to make Section 10 inapplicable.

8. Mr. Kapur, learned Counsel for the plaintiff, on the other hand contends that the provision of Section 10 of the C. P. C. is not attracted and that the cause of action in the City Civil Court is a different cause of action and/or limited in scope to the extent that the notice of 29th. Aug. 1979 alone is challenged as being void, inoperative and as of no effect. He contends there can be no case of res judicata in so far as the proceedings in the instant case are concerned as the field of controversy between the parties is more comprehensive in the subsequent suit and the issue which will be required to be decided is a much broader one, namely, as to whether the defendant company is liable to be rejected on any of the grounds set out in the plaint and the material point for determination herein is whether there has been revocation of the grant in favour of the defendants so as to disentitle them from continuing in possession of the suit premises. He points out that the proceedings in the City Civil Court will not effectively and/or completely decide and/or adjudicate upon the wider issue as to whether the defendant mills are liable to be ejected and the earlier suit filed proceeds merely on the basis of the notice being bad. Recovery of possession could thus not be obtained in a suit which is merely a declaratory suit seeking consequential reliefs. He contends that to invoke the provision of Section 10 what is required to be seen is whether the very same question will be in issue between the parties in two courts of concurrent jurisdiction and even if the defence of the company in the earlier suit fails and notice held to be bad the landlord cannot be debarred from relying upon another cause of action in a subsequent suit for ejectment. Drawing my attention to paras. 12 and 13 of the plaint it is contended that the cause of action of the plaintiff's claim for ejectment is the total repudiation of the agreement dt. 26th Dec. 1975 by the defendant mills, which resulted in the determination of the relationship of grantor and grantee between the parties. It is further contended by the plaintiff that having accepted the said repudiation and/or determination for greater safety the notice of 29th AUG. 1979 was caused to be served on the defendant mills requesting them to deliver up vacant possession of the suit premises on the expiry of Nov. 1979. It is contended that to invoke Section 10 one of the principles applicable is the test of res judicata. namely, that the matter in issue must be directly and substantially the same in both the suits, and the question of mesne profits and/or compensation and/or claim for possession not being an issue in the City Civil Court proceedings the same is a material aspect of the matter.

9. Relying upon Brijlal & Co. v. Madhya Pradesh Electricity Board, reported in : AIR1975Cal69 Mr. Kapur contends that whether the suit is required to be stayed would be on the basis of the decision in the other suit on the principles of actual or constructive res judicata, and only if the entire field of controversy between the parties is finally decided and/or determined by the earlier suit, a stay would have been permissible and not otherwise. In that case A filed suit against B claiming refund of price in respect of defective supply of goods under a contract. Subsequently B filed a suit claiming certain amounts under the contracts and also for damages for breach of the contract by A. The claim in the later suit far exceeded the claim in the former and on an application u/s. 10 praying for stay of the suit filed by B, the Court held that the entire controversy between the parties could not be finally determined in the suit instituted first since the field of controversy and claim in the later suit was far more comprehensive although there was some common issue in both the suits.

10. Reliance was also placed on a Division Bench Judgment of this Court reported in : AIR1975Cal411 (Shaw Wallace & Co. v. Bholanath Nandanlal Sherawala) the ratio decidendi of which case is that mere identity of some issues is not sufficient to attract the provisions of Section 10 of the C. P. C. and unless the decision of the suit operates as res judicata in the other suit it cannot be said that the matter in issue is directly and substantially the same in both the suits. In other words, the decision in one suit must non-suit the plaintiff in the other suit before it can be said that the matter in issue in both the suits is directly and substantially the same. The Court further viewed that it was well-settled that unless an issue was framed and decided by the Court it could not operate as res judicata in a subsequent suit between the same parties or their privies. The Court speaking through Deb. J. was also of the opinion that the expression 'principal matter in issue' used by the learned Chief Justice Chakravartti in : AIR1957Cal727 and followed by Mitra and SectionK. Mukherjea. JJ. in : AIR1972Cal128 should be read, understood and construed in consonance with and subject to the following statement of Sri Ashutosh Mookerjee in Bepin Behary v. Jogendra Chandra, reported in 24 Cal LJ 514 at p. 515: (AIR 1917 Cal 248 at p. 249), the relevant passage whereof reads:--

'What then is the meaning of the expression 'the matter in issue.' The defendants invite us to hold that the expression is equivalent to 'any of the questions in issue.' The obvious answer is that if that had been the intention of the framers of the section, appropriate words might have been used to bring out such sense. We are of opinion that the expression 'the matter in issue' has reference to the entire subject in controversy between the parties. The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue.'

11. Reliance was next placed on Shiva Prasad Agarwal v. Semiconductors Ltd., reported in AIR 1976 Cal 358 for the scope and effect of the meaning of matters in issue directly and substantially in both the suits. In that case the question involved in the previously instituted suit was whether there was proper performance of a contract by the defendant-respondent and if not, to what damages if any, the plaintiff-applicant was entitled, whereas the question involved in a subsequent suit was whether there was wrongful repudiation of the contract by the defendant-applicant and if so whether the plaintiff-respondent was entitled to damages. In that background the Court held that the two questions being separate questions the disposal of one issue would not resolve the need for adjudication of the other issues and thus held that the matters in issue directly and substantially in both the suits were not the same.

12. Mr. Kapoor submits that the decision cited in : AIR1971Cal345 relied upon by the applicant is of no assistance inasmuch as that decision merely reiterates the proposition that one of the tests fpr the applicability of Section 10 is the test of res judicata. In any event, it is to be noticed at page 346 in para 9 of the judgment of the said report, the Court took cognisance of the fact that the first Court had pecuniary jurisdiction to try the second suit. The test laid down in para 12 of the judgment is to ascertain whether the matter in the latter suit will be res judicata if the prior suit is taken to have been decreed in the manner as prayed for. was not intended by the Court to be a singular test to be infallibly applied to every circumstance and/or set of facts. He contends that the said decision is no authority for the proposition that the prayers in the earlier suit must be so deemed and/or that the presumption is to be conclusive for all purposes. He illustrates and submits that startling prayers cannot be taken cognisance of by a Court of Law in presuming that such a decree will be deemed to have been passed. In any event the decision is an authority for the proposition that the question for the Court is whether the earlier suit disposes of issues in the second suit, para 13 of the judgment moreover reported at page 347 clearly underlines the principle and object of Section 10 which was to achieve finality in litigation and to prevent multiplicity of proceedings as also a conflict of decisions in respect of the same subject-matter involved in the two different suits filed by and between the same parties, and the decision in Durga Prasad v. Kanti Chandra Mukherjee reported in AIR 1935 Cal 1 was quoted with approval. In that case the Division Bench of this Court at page 7 observed :--

'........ .The real criterion to apply is this. Supposing the first suit was determined; would the position then be that when the second suit was instituted the matters raised in the second suit were res judicata by reason of the decision of the prior suit. In that way, the provisions of Section 10, logically and naturally precede Section 11.'

13. Thus, if these tests approved by Dutta. J. in : AIR1971Cal345 , are followed in the instant case no question of stay will arise as matters in issue are not substantially and directly the same in both suits. Drawing the Court's attention to paras. 12 and 13 of the plaint he contends that the wrongful acts on the part of the defendant amounted to a repudiation of the agreement of Dec, 26. 1975 for the reasons given therein and the notice of 29th Aug. 1979 was a notice issued for greater safety and this fact ought to be considered when considering this application. It is also urged in para 14 of the plaint that no counter-claim could have been made in the City Civil Court suit by reason of the fact that the City Civil Court suit would have no pecuniary jurisdiction to entertain a claim for the money decree sought. Para 8 of the Written Statement in fact does not deny that this is the factual position.

14. So far as valuation for the purpose of Court Fees and jurisdiction is concerned Mr. Kapoor relies upon Section 7(vi)(b) of the West Bengal Court Fees Act which reads as follows :--

'(vi) for recovery of possession of immovable property : In a suit for recovery of possession of immovable property from-

(a) a trespasser.

(b) a licensee upon revocation or termination of his license,--

(i) Where a license fee is payable by the licensee in respect of the im-moveable property to which the suit refers according to the amount of license fee of the immovable property payable for the year next before the date of presenting the plaint, or

(ii) Where no such license fee is payable by the licensee ...............'

15. The other obstacle in the way of the applicant in succeeding in this application is that construing Section 10 of the C. P. C. it must be held that the earlier Court must have jurisdiction to grant relief claimed in the subsequent suit. He contends that the three essential conditions for the application of Section 10 of the C. P. C. are :--

(i) that the matter in issue in the second suit is directly and substantially in issue in the previously instituted suit;

(ii) that the parties in the two suits are the same and claim under the same title,

(iii) the Court in which the first suit is instituted is the Court of competent jurisdiction to grant the relief claimed in the subsequently instituted suit. In support of the aforesaid submissions he cites Kalipada Baneriee v. Charubala Dassi reported in AIR 1933 Cal 887, Nanu Singh v. Muni Nath Singh reported in : AIR1954Pat314 and Bepin Behari v. Jogendra Chandra reported in 24 Cal LJ 514 : AIR 1917 Cal 248,

16. In reply learned Counsel for the - applicant contended that the cases cited on behalf of the respondents do not give a correct interpretation of Section 10 of the C. P. C. and it must be held that the term 'relief claimed' provided under Section 10, contemplates the relevant claims in the first suit, and the question before the Court is whether that Court was competent to grant the reliefs sought. There is thus no scope for urging that the first Court must be competent to grant the reliefs claimed in the subsequent suit and as such there is no basis for urging that both the Courts must necessarily be courts of concurrent jurisdiction. To emphasise this point he relies on Section 11 of the C. P. C. which enacts that no Court shall try any suit or issue in which the matter is directly and substantially in issue in a former suit between the same parties and/or persons claiming under same title. This section embodies the principles of res judicata and it is this test which has been made applicable in : AIR1971Cal345 . Thus, if the prayers made in the City Civil Court plaint are deemed to be decreed the same would be res judicata and the plaintiff in this suit must be bound thereby. The judgment reported in AIR 1933 Cal 887 is obiter and cannot be of any assistance to the plaintiff, whereas the decision in AIR 1938 Mad 602 merely supports the observations of Mull a and advances no cogent reason for interpreting the relevant section in the manner done. In fact the third ground of reasoning relied upon by the Court in approving Mulla's commentary namely if the suit is stayed a very important suit in a superior Court would have to be stayed pending the decision of suit in the Small Cause Court should be unacceptable on the face of it.

17. The Divisional Bench decision in ' : AIR1954Pat314 , is also criticised on the same ground that no reasons were given and/Or authorities relied upon to support the view expressed. My attention was also drawn to the decision in Chennabasappa Kamal Lal & Sons v. Kissen Chand & Co., reported in AIR 1972 Mys 112 which case was relied upon to support the applicant's proposition that the competency of the jurisdiction of the first court to grant reliefs claimed in the second suit is of no consequence. In that case cited, the Court held, inter alia, that 'even if the first court has no territorial jurisdiction to entertain the second suit, even then Section 10 of the C. P. C. would be applicable,'

18. Learned Counsel for the applicant alternatively argues that if this Court holds that ths provisions of Section 10 are not attracted in the facts and circumstances of the case, to save multiplicity of proceedings and to avoid a conflict of decisions, reliefs sought should be granted under Order 39 and/or Section 151 of C. P. C. invoking the inherent jurisdiction of the Court to pass necessary orders in the interest of justice.

19. On the point of valuation, it is contended, that Section 7(vi)(b) of the W. B. C. F. Act 1970, is not applicable for valuation for the purpose of jurisdiction, and Section 8 of the Suits Valuation Act, was the relevant section requiring consideration.

20. Lastly, it is contended that the matters in issue in both the suits are substantially the same and the question to be determined is what is the jural relationship between the parties under the agreement relied upon, and the scope of the earlier suit cannot be narrowed down by contending that the second suit with different facts is a more comprehensive suit.

21. Having carefully considered the respective submissions made on behalf of the parties, I am satisfied that the contentions of Mr. Kapur, Learned Counsel for the plaintiff Co., is of more substance and must be upheld on the following grounds :--

1. The materials on record evidence [that the matters in issue and/or the subject-matter of the two suits cannot be said to be identical so as to attract the provisions of Section 10. The subsequent and more comprehensive suit, is sought to be stayed, being one primarily for ejectment, whereunder, inter alia, the relief of possession and mesne profits and/or compensation i. e., a claim for money is made, whereas the earlier suit filed in the City Civil Court is patently a title suit limited in its scope, merely seeking a declaration that the notice of Aug. 29. 1979 terminating the agreement dated Dec. 26, 1975, is invalid, inoperative and void ab initio. and that the defendant company is not entitled to unilaterally terminate and/or revoke the grant made thereby in favour of the plaintiff mills. The entire field of controversy between the parties, therefore, cannot be held to be substantially the same, as sought to be contended by the Learned Counsel for the defendants.

2. Secondly and the greater hurdle, to my mind, which faces the applicant in obtaining the order for stay under Section 10 of the C. P. C, is that it cannot be lost sight of that the section which merely enacts a rule of procedure, is to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue, as held in Bepin Behary v. Jogendra Chandra, reported in 24 Cal LJ 514: AIR 1917 Cal 248, where Chief Justice Mookerjee, speaking for the Court, interpreted the expression 'matter in issue' occurring in Section 10 of the C. P. C. One of the prerequisites of Section 10 being the court in which the subsequent suit instituted or any other court, whether superior, inferior or co-ordinate. Such a court is a court competent to grant relief claimed in the subsequent (previous ?) suit and the weight of authority supports this interpretation as is the ratio decidendi of several decisions cited, viz., vide. AIR 1933 Cal 887, AIR 1938 Mad 602 and : AIR1954Pat314 .

To my mind, Section 10 dealing with Court's jurisdiction to proceed to determine a suit is required to be strictly construed and I see no reason for construing the provisions thereof in the manner as suggested by the Counsel for the applicants. I am fortified in my views not only by the decisions cited as also by the observation of the learned author Mulla. No decision has been cited or referred to which is contrary to the views expressed. I am, therefore, of the view that Section 10 of the Code has received authoritative interpretation by judicial decisions and/or long way of practice and see no reason to depart therefrom and as such must hold that the meaning 'having jurisdiction to grant the relief claimed' occurring in Section 10 of the C. P. C. contemplates the competency of the first court to grant the reliefs claimed in the second suit.

In the instant case, the City Civil Court is undoubtedly incompetent to grant either the decree for possession (such a prayer not being made) and/or a decree for mesne profits as sought herein, as admittedly the subsequent suit valued at Rs. 78,000/- is patently beyond the pecuniary jurisdiction of that Court.

3. Thirdly, the 'matter in issue' contemplated by Section 10 means disputed material questions in the subsequent suit, which are directly and substantially in issue in the previous suit, and matters not in issue cannot be regarded as heard or finally decided so as to operate as res judicata in the subsequent suit. This being so, any decision in the earlier suit cannot non-suit the plaintiff in the subsequent proceedings and the ratio decidendi of the case reported in : AIR1975Cal411 , is plainly attracted. As observed by the Divisional Bench, it is well-settled that unless an issue is framed and decided by a Court, it cannot operate as res judicata in a subsequent suit between the same parties or their privies.

The other Divisional Bench decision of this Court relied upon Shiva Prosad Agarwalla v. Semi Conductors Limited reported in AIR 1976 Cal 358 is also an authority which lends force to Mr. Kapur's contention that disposal and/or adjudication of one issue alone (in the instant case at best notice of Aug. 29, 1979 is invalid and inoperative) would not resolve the other partinent issues, which would necessarily arise in the subsequent and more comprehensive suit, viz., whether the defendant mills are liable to be ejected on any of the grounds alleged and whether any mesne profits and/or damages are payable by them as claimed by the plaintiff company.

Brijlal v. Madhya Pradesh Electricity Board, reported in : AIR1975Cal69 , is also an authority for the proposition that the entire controversy between the parties in both the suits is required to be finally determined in the earlier suit before the subsequent suit is liable to be stayed on the basis of the earlier decision, on the principle of actual or constructive res judicata.

4. Lastly, so far as the pecuniary jurisdiction of the Court is concerned, Section 8 of the S. V. Act provides that the value as determinable for the computation of court-fees and the value for the purpose of jurisdiction shall be the same. In my view, in computing Court-fees, substance and form of the plaint must be kept in mind and the question of court-fees payable must necessarily be considered in the light of the allegations made in the plaint and cannot be influenced either by the pleas in the written-statement and by the final decision of the suit on the merits. This being so, from a plain reading of the plaint, the status of the defendants appears to be that of a licensee and the question required to be determined in the suit is whether permissive occupation allowed to the defendant has been terminated and/or put to an end, entitling the plaintiff to a decree for ejectment If this be the basis of the plaint, whether substantiated or not, the present suit has been correctly valued on the basis of the reliefs sought attracting Section 7(vi)(b)(i) of the W. B. C. F. Act of 1970 and no other basis of valuation has been suggested by the Ld. Counsel for the defendants. The plaintiff, has accordingly valued this claim for the purpose of court-fees and jurisdiction at Rs. 78.000/-. which valuation, to my mind, has not been shown to be an arbitrary assessment capriciously made and thus it is this amount which is required to be taken cognisance of when considering whether the Court's pecuniary jurisdiction is attracted.

22. This Court, furthermore, sees no reason in view of the facts aforesaid, as to why its inherent jurisdiction should be invoked, and indeed there is no cause for so doing. In the premises the court's discretion is not called for to be exercised and neither Order 39, and/or the Courts inherent powers under Section 151 is required to be invoked. The decision reported in Monoharlal Chopra v. Seth Hiralal, reported in : AIR1962SC527 , is an authority for the proposition that temporary injunction under Order 39 can be issued only when the circumstances as prescribed under the said order are made applicable and ordinarily the Court is not to use its inherent powers in the interest of justice but is merely to see whether the circumstances of the case bring it within the prescribed rule, the Civil Courts generally having no inherent jurisdiction in cases not covered by Rules 1 & 2 of Order 39 to restrain the parties from proceeding before them. The said decision is also an authority for the proposition that the inherent powers of the Court under Section 151 are to be exercised by the Court only in very exceptional circumstances such as when it is found that the subsequent suit is a vexatious one. It has not been established nor shown that the present proceedings filed are vexatious and/or an abuse of process of the Court and as such no grounds have been made out invoking the Court's inherent jurisdiction.

23. For the aforesaid reason. I hold that the applicants have not satisfied the exigencies of law and the facts of the case do not attract the provisions of Section 10 of the C. P. C. Nor are the applicants entitled to an injunction in terms of prayer (b) under Order 39 and/or Section 151 of the C. P. C.

24. The application is accordingly dismissed with costs.


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