P L D 1966 (W (PLP)

G. Safdar Shah for Defendant. Date of hearing: 2nd March 1965. Section 10, C. P. C., for its application, requires a previously instituted suit in which the matter m issue is also directly and substantially in issue in the subsequent suit, that parties in both the suits should be the same and it further requires that the Court in which suit is. previously instituted should have jurisdiction to grant the relief claimed in the subsequent suit. It is in this respect, i.e., where the facts of a particular case would attract its provision is clearly laid down in a case reported in Durgaprasad v. Kantichandra Mukerji (A I R 1935 Cal. 1). It was held as follows:- "If it is satisfactorily demonstrated that the second suit is `parallel' to the first suit, then the best course for every body concerned would be to put a stay upon or to arrest altogether the second suit at the earliest possible moment." Therefore where a party claims interference of the Court to stop any other action between the same parties, it lies upon him to show to Court that a multiplicity of action is vexatious and A the whole burden to prove lies upon him. He does not satisfy that burden of proof by merely showing that there is multiplicity of actions, he must go further Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (AIR 1962 S C 527). In this particular case, applicant Shaikh Abdul Sattar filed a Suit No. 168/64 in this Court on 27-11-64 for declaration that the promissory note, dated 19-8-64 is without considera tion to the extent of Rs. 2,10,799/68 and to this extent this promissory note is not enforcible against the plaintiff and for issue of permanent injunction restraining the defendant No. 1 (Kasimali) from enforcing the said promissory note to the extent in any manner whatsoever. Defendant No. 2 in this case is M/s. Riaz & Kandawalla Ltd. Subsequently this defendant No. 1 (Kasimali) filed a Suit No. 172; 64 against Shaikh Abdul Sattar (plaintiff) of the previous suit) on 14-12-64 under Order XXXVII, C. P. C. for recovery of a sum of Rs. 8,40,000 on the basis of the same pronote. It would mean that applicant Abdul Sattar has challenged the consideration of the pronote to the extent of Rs. 2,10,799/68 while Kasimali has on the basis of the same pronote claimed the entire consideration of this pronote, i.e., 8,40,

000. Thus, there is no controversy about the facts that Suit No. 168/64 was filed by the applicant Abdul Sattar previously to Suit No. 172/64 by Kasimali. Both these suits have been filed in this Court which has jurisdiction to grant the reliefs claimed in both the suits by the plaintiffs. Similarly there is no dispute about the parties. The only point, therefore, for determination in this application would be whether the matter in issue in both the suits is directed and substantially the same. Court has no discretion in this matter to refuse stay of proceedings if an applicant satisfies the Court that all the condi tions laid down in section 10 C. P. C. are satisfied by him. Applicant Shaikh Abdul Sattar, if the succeeds in his Suit No. 168/64 would merely get a declaratory decree in respect of a part of the consideration of the pronote to the extent of Rs. 2,10,799 68 and this decree is not executable, while in the other case, if Kasimali succeeds, and proves that the consideration of the pronote is Rs. 8,40,000 he would get a money decree which could be executed by him. Thus there is no substantial identity in the subject-matter between the two suits filed by these parties, in this Court. It has been held in a case reported as Gargi Din Misra v. Debi Charan (A I R 1929 All. 805): "Unless the subject-matter in two suits is identical and the reliefs are also the same, section 10 is inappli cable. The mere fact that one issue is common in two suits would not necessitate the stay of subsequent suit. The words "matters in suit" mean the entire matter in controversy and not one of the several issues in the case. Section 10 is limited in its scope. Same view is expressed in a case reported as Dwarka Das v. Governor-General of India-in-Council (A I R 1947 Lah. 28) where it was held that in, order to attract the application of section 10 there must be a com plete identify of the entire subject-matter of the two suits. It is not necessary that every matter in dispute should be directly and substantially in issue in the two suits. Allababad High Court also holds the same view as reported in Hathi Ram v. Hazi Muhammad (A I R 1954 All. 141). It was held that the words "matter in issue" in section 10, Civil P. C. mean the entire matter in controversy and not one of the several issues in the case. The same High Court (F. B.) in a case reported as Ramrichpal Singh v. Dayanand Sarup (A I R 1955 All. 309) held that: "The Court continues to have seisin of the case and ultimately it has to dispose it of according to law. Viewed from this point of view, the decision of a question under section 10 where the Court has to consider whether there is a previously instituted suit or not and whether the matters in issue are directly and substantially in issue in that other suit or not, are both questions which have to be determined judicially and if the decision of the two questions is in favour of the defendant, the Court has to stay the suit as the provisions of section 10 appear to be mandatory." It is manifest from the factual position stated above and the discussion of the legal aspect of the matter that the Suit No. 168/64 filed by the applicant Shaikh Abdul Sattar is previous to Suit No. 172/64 filed against him and that both the suits are between the same parties and lastly that this Court has juris diction to grant reliefs claimed in both the suits. But he has failed to prove that the matter in issue in both the suits is directly and substantially the same and as such he is not entitled to stay of proceedings in the latter suit. The next question that would now rise is whether he is entitled to such relief, i.e., stay of the latter suit in view of the provisions of section 151, C. P. C. It reads as follows:- "Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be for the ends of justice or to prevent abuse of the process of the Court." Thus Court has inherent powers to make necessary orders for the ends of justics and also to prevent abuse of the process of the Court. In a case reported as Ram Bahadur Thakur & Co. v. Davidayal (Sales) Ltd. (A I R 1954 Bom, 176) the applicant had satisfied all the conditions laid down under section 10, C. P. C. but his request was refused in order to prevent abuse of the process of the Court in the exercise of its powers under section 151, C. P. C. It was held:- "The provisions of section 10 and section 151 of the Civil Procedure Code must be read together, and if the Court which is asked to stay a suit comes to the conclusion that by staying the suit before it, it would perpetrate an abuse o.'' the process of Court, or would enable the other party to obtain a benefit to which in view of his conduct he is not legitimatel3 entitled, then, notwithstanding the provision of section 10 the Court would be justified in refusing to stay the suit before it, even though that suit is a subsequently instituted suit. Section 10 has no application when a suit is instituted which constituted an abuse of the process of the Court. If a suit is filed in order to forestall a suit which would be filed subsequently in another Court or if a suit is filed which is vexatious of contractual obligation to have the matter adjudicated upon in another Court, such a suit would constitute an abuse of the process of the Court." The facts of that case are that the applicant had filed a suit at Calcutta and subsequently a suit was filed against him at Bombay. He approached the Bombay Court for stay of subse quent suit but it was refused and this view was taken on appeal by the Bombay High Court. It was observed that: "Therefore, in coming to the conclusion that we do, we are not extending the scope of section 151 which is now well-settled by a long line of authorities, but we are applying the principle underlying that section to a situation that might arise which could not have been contemplated by the Legislature when it enacted section

10. It would be true to say, in our opinion, that every section in the Code has got to be given effect to be provided it does not lead to an abuse of the process of the Court. The Civil Procedure Code is a procedural Code and no Court can permit any procedure to be followed which denies justice and leads to its own process being abused. If that principle is accepted, then the application of section 151 presents no difficulty whatsoever." I am in respectful agreement with the observations made in respect of the provisions of section 151, Civil Procedure Code and their applicability. It is well-settled that under section 151 a Court cannot act contrary to the specific provisions of the statute. Section 151 is intended to deal with cases which have not been dealt with by the Code. It is clear that the C. P. C. cannot E deal with every conceivable case that may arise in Courts of law and section 151 is, therefore, enacted in order to save the I inherent powers of the Court to do justice under proper cases. But to express the view that the previously instituted suit vexatious or frivolous or was filed in order to facilitate a suit which would be filed subsequently in the same Court or any other Court at such initial stage is likely to prejudice the case of the applicant. Specially as the facts of the Bombay case show it would not be a fair or proper to express this view about a case which was previously instituted by the applicant in Calcutta Court. Majority view of the Supreme Court of India is expressed in a case reported as Manohar Lal Chopra v. Rai Bahadur Raja Seth Hiralal (AIR 1962 S C 527) as follows:

"It is well-settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incap able of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them . . . . . Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code." Lastly there is a case reported as Dwarka Das v. Governor General of India-in-Council and others (A I R 1947 Lah. 28). It was held that: "However, in a case not covered by section 10 an order for stay of a subsequently instituted suit may be made under section 151, if the Court considers it necessary to make such an order in the interests of justice and in order to avoid unnecessary harassment to any of the parties. Same High Court in a case reported as Colony Woollen Mills Ltd. v. Firm Ismail Abdul Sattar & Bros., Karachi P L D 1959 Lah. 802 held that "There is no discretion vested in such Court to refuse to stay the proceedings on any ground much less, on the ground that the suit instituted in the first Court was vexatious or frivolous or oppressive or was in breach of any contract entered into between the parties." This view is different from the. view taken by the Bombay High Court as reported in Ram Bahadur Thakur and Co. v. Devidayal A I R 1954 Bom.

176. In this particular case I have already pointed out that there is no substantial identity in the subject-matter between the two suits. Pronote in dispute was executed by the applicant Shaikh Abdul Sattar on 19-8-64 and it recites that its con sideration was paid to him by two cheques for Rs. 2,97,212,50 and 5,42,787'

50. About 3 months later Shaikh Abdul Sattar filed a Suit No. 168/64 in this Court on 27-11-64 and disputed the consideration of the pronote to the extent bf Rs. 2,10,79968. In his letter, dated 5-12-64 which was written by him in his reply to a letter, dated 1-12-64 received on 3-12-64 from the plaintiff Kasimali, he had alleged that a loan of Rs. 8,40,000 was "never a fact". In paragraph 3 of that letter he refers to his Suit No. 168/64 regarding want of consideration of pronote to the extent of Rs. 2,10,799-68. Kasimali then filed the suit on 14-12-1964. It was, therefore, urged on his behalf that Shaikh Abdul Sattar in violation of the con tractual obligation had forestalled him by filing the suit. No harassment would be caused to him even if latter suit, i.e., 172/64 is proceeded with which would naturally involve the question of the determination of the consideration of the pronote which is the basis of this suit. Application is accord ingly dismissed with costs. S.Q. Application dismissed