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S.K. Rungta and Co. (Jute and Seeds) Vs. Nawal Kishore Debi Prosad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberSuit No. 1627 of 1963
Judge
Reported inAIR1964Cal373
ActsCode of Civil Procedure (CPC) , 1908 - Section 10
AppellantS.K. Rungta and Co. (Jute and Seeds)
RespondentNawal Kishore Debi Prosad and ors.
Appellant AdvocateSankar Ghose and ;S.N. Shroff, Advs.
Respondent AdvocateS.B. Tebriwal, Adv.
Cases ReferredS. M. Modi v. Mansata Film Distributors
Excerpt:
- .....have they filed their written statement. defendant no. 3 has only entered appearance, but has not filed written statement. instead, he has taken, out the present notice for stay on the ground that he had instituted previously a suit in the muzaffarpirr court in which the issues raised are the same as in the instant suit. no written statement has been filed by the present petitioner in the instant suit disclosing the defence. normally i would net have allowed an application under section 10 to be moved unless the party making the application has filed his written statement.' but i find from a decision of this court in the case of s. m. modi v. mansata film distributors, reported in : air1957cal727 , our appeal court did entertain an application under section 10, even though no written.....
Judgment:
ORDER

P.C. Mallick, J.

1. This is an application for stay under Section 10 of the Code of Civil Procedure.

2. This suit was instituted by the plaintiff firm forthe recovery of the sum of Rs. 7669.87 np. on a commission agency agreement. The defendants impleaded arethe firm of Nawal Kishore Debi Prosad, with whom the plaintiff had the said commission agency agreement. Defendants No. 2 and 3, are the partners of the said firm of Nawal Kishore Debi Prosad. It is alleged in the plaint that the defendant firm has become liable to pay under the said agreement the sum claimed in the plaint, the accounts between the two firms, in terms of the agreement, were adjusted at the end of the Sambat years and the amount claimed has been found to be due on such adjustment. After giving credit for the amounts paid, for the recovery of the balance the instant suit has been instituted. Two of the defendants, namely, the defendant firm and defendant No. 2 have not entered appearance for have they filed their written statement. Defendant No. 3 has only entered appearance, but has not filed written statement. Instead, he has taken, out the present notice for stay on the ground that he had instituted previously a suit in the Muzaffarpirr Court in which the issues raised are the same as in the instant suit. No written statement has been filed by the present petitioner in the instant suit disclosing the defence. Normally I would net have allowed an application under Section 10 to be moved unless the party making the application has filed his written statement.' But I find from a decision of this Court in the case of S. M. Modi v. Mansata Film Distributors, reported in : AIR1957Cal727 , our Appeal Court did entertain an application under Section 10, even though no written statement was filed. Their Lordships looked to the plaint in the previous suit for the purpose of finding out what the disputes between the parties are. A copy of the plaint in the Muzaffarpur suit is annexed to the petition. A perusal of the plaint makes it clear that the petitioner defendant No. 3 is seeking to be relieved of his liability as partner on the ground that there has been a dissolution of the partnership that on such dissolution the other partner is entitled to recover the assets and be responsible for the liabilities and that the plaintiff firm has agreed to look to the other partner to recover claim against the partnership firm and not to the petitioner. Whether or not the petitioner has been relieved of his liability as a partner is the only substantial question to be decided in the Muzaffarpur suit. This question arises and has to be adjudicated in the instant suit assuming that the same case is made in the written statement if filed. The point to be noted is, that it would be an issue only as between the petitioner and the plaintiff firm. This would not be any defence to the plaintiff's claim as against the defendant firm and the other partner.

3. If the trial of the suit takes place leaving out the Sureka defendant who has instituted suit in the Muzaffarpur Court, Section 10 would not be a bar to the trial because it would not involve determination of the issue raised in the Muzaffarpur suit. The effect of proceeding with the suit against the other defendants would mean that the suit is partially stayed and not fully. Can it be done under Section 10 of the Code? My answer is that it can be done. All that Section 10 does is to direct a Court not to try a suit in which the matter in issue is also directly and substantially in issue is a previously instituted suit. If after a partial stay the trial of the suit does not involve the determination of anv issue to toe tried in a previously instituted suit. I do not see why the trial of tha instant suit as against the other defendants should be stayed under Section 10 of the Code of Civil Procedure.

4. It is not imperative for the Court to try the suit as a whole. The Code of Civil Procedure does provide for piece-meal trial. A suit may be instituted by a number of plaintiffs against a number of defendants. All the reliefs nead not be claimed against all the defendants. Again the Code provides for joinder of cause of action. In such cases a number of suits are really rolled into one. It is therefore provided in Order 2, Rule 6 that in such cases the Court should direct separate trial, if it appears to be inconvenient to try the suit as a whole. There is therefore nothing in law to prevent a piece-meal trial. On the other hand such piece-meal trial is expressly provided for in our Code of Civil Procedure. No authority has been cited in support of the proposition that lhare cannot be a partial stay of the suit under Section -10 of -the Code. There is therefore neither reason nor authority against a partial stay under Section 10 of the Code of , Civil Procedure. Interest of justice will not be served by staying the suit against defendants who neither filed any written statement in answer to the plaintiff's claim nor asks for stay. There is no reason why the plaintiff should be asked to wait indefinitely to recover its claim against defendants who have no answer to the plaintiff'sclaim.

5. It is contended by Mr. Ghose that if the suit is allowed to proceed against the defendant firm and a decree passed against it, the decree would be executable against the petitioner as well. Normally, that would be so but there is nothing to prevent the Court from directing that the decree to be passed against the firm should not be executable personally against one of the partners who is disputing his liability in a separate suit till the determination of that suit. I do not think therefore that there is any reason why I should stay the suit so far as the defendant firm is concerned. On the present materials I would only be justified in staying the suit as against the defendant No. 3 and no other. As against the rest the suit will proceed. The decree to be passsed against the dafendant firm is not executable against the Sureka defendant personally till the determination of the Muzaffarpur suit and subject to the result of that suit. The costs of this application will be costs in the causes.

6. There will be the same order in the other matter.


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