Punjab-Haryana High Court
Karnail Singh vs Chaman Lal Kamlesh Kumar Commission ... on 21 December, 2001
Author: Bakhshish Kaur
Bench: Bakhshish Kaur
JUDGMENT Bakhshish Kaur, J.
1. C.M. No. 1093 CII of 2001 is allowed Annexures P-l to P-3 are allowed to be taken on record.
2. The plaintiffs M/s. Chaman Lal Kamlesh Kumar are commission agents and deal in the commission agency business of grains. The defendants have been availing the financial assistance from the plaintiffs. According to the plaintiff, the amount of Rs. 4,80,000/- is payable by the defendants, therefore suit No. 40/99 dated 28.2.1999 for recovery of this amount has been filed in the Court of Addl. Civil Judge (Sr. Division), Guhta.
3. The present suit has been filed by the defendants for recovery of Rs. 3,61,244.93 against the plaintiffs of aforesaid suit No. 40/99. Therefore, an application under Section 10 of the Code of Civil Procedure (in short 'the Code') has been filed by M/s Chaman Lal Kamlesh Kumar-defendants (hereinafter referred to as 'the defendants') for staying the proceedings of the present suit filed by Kamail Singh. The application has been allowed by the learned Addl. Civil Judge (Sr. Division), Guhla vide the impugned order which has been challenged in this revision petition.
4. I have heard Sh. Naresh Prabhakar, learned counsel for the petitioner and Sh. P.K. Jain, learned counsel for the respondents.
5. Sh. Naresh Prabhakar, learned counsel for the petitioner contended that the provi sions of Section 10 of the code are not applicable to the case in hand. For attracting pro visions of Section 10, the matter in issue in later instituted case should be directly, and substantially in issue in the earlier instituted suit. The chief test for applying Section 10 is to see if the findings of the earlier suit, on being decided would operate as resjudicata in the later suit. The matter in issue in these two units is distinct. Further, the Court at' Guhla has no competercy to grant the reliefs claimed by Karnal Singh in the suit filed by him.
6. Shri Naresh Prabhakar has placed reliance on Ranchhoddas Shamji Khirani and Anr. v. Ramchandra Rao Moreshwar Karkare, A.I.R. 1963 Madhya Pradesh 59, Shah Ganda Mal Tribhovan v. Sachdeva & Sons Rice Milts Limited, Amritsar, (1999-1)121 P.L.R. 59, Sankhla industries v. Hiraiai Pitkhraj, A.I.R. 1973 Rajasthan 306.
7. In Ranchhoddas Shamji Khirani and another's case (supra), the plaintiff-petitioner had purchased some shares of Birhafl Maharashtra Sugar Syndicate Ltd. from R.M. Karkara and N.V. Godbole (non-petitioners) and paid the price of shares to the non-petitioneRs. On the refusal of the Syndicate to transfer the shares in the purchaser's name, the purchaser filed a suit No. 55 of 1959 in the Court of Civil Judge, Poona, praying that the Syndicate be directed to enter the name of the plaintiff-purchaser as a share-holder and to trike the names of non-petitioners from whom he had purchased the shares and thus, rectify the register of the Syndicate. Apart from this suit at Poona, the plaintiff-petitioner filed two suits against the sellers of the shares in Gwalior on the allegation that even after receiving the price of shares from the petitioner, they have received dividends of the shares from the Company and that it be declared that the sellers of shares are the plaintiffs trustees in respect of the dividends they have received. These two suits were stayed by the Gwalior Court, It was held by the Madhya Pradesh High Court that the suits in Gwalior are on a different footing. They are for a declaration that the amount of dividend which accrued to the sellers and which they received was in trust for the plaintiff and as such it should be made available to him. The cause of action and the reliefs in the Poona suit and Gwalior suits are different and it cannot be said that the matter in issue in both the suits is directly and substantially the same.
8. On the other hand, Shri P.K, Jain, learned counsel for the respondents placed reliance on Sehgal Knitwear v. Shresth International, (2000-1)127 P.L.R. 507, and Manohar Lal Chopra v. Rai Bahadur Raja Seth Hiralal, A.I.R. 1962 S.C. 527, to oppose the contentions raised on behalf of the petitioner.
9. The petitioner has placed on record copies of pleadings in both the suits. A perusal of plaint in suit No. 40/99 shows that the suit was filed by M/s Chaman Lal Kam-lesh Kumar through its partner and Manager Surinder Kumar son of Niranjan Dass against Karnail Singh, lamail Singh, Balkar Singh, Ramesh Singh sons of Dalip Singh _.and-Chamkor Singh, Jasveer Singh sons of Karnail Singh. Adverting to the plaint of suit No. 174717.8.1998, it is evident that this suit was filed by Kamail Singh (who is one of the defendants in suit No. 40/99) against M/s Chaman Lal Kamlesh Kumar besides Sur-inder Kumar and Vijay Kumar sons of Niranjan Dass.
10. The suit No. 44/99 was for recovery of Rs. 4,80,000/-. It has been averred therein that prior to 23.5.1996 there has been a running account of defendant No. 1 and till that date, a sum of Rs. 10,000/- was lying in the credit of defendant No. l and after adjusting the amount of credit advanced to the defendants on various occasions as detailed in the plaint, a sum of Rs. 4,42,620/- along with interest at the rate of 18% per annum is payable by the defendants.
11. On the other hand, the suit No. 174/17.8.1998 is for recovery of sum of Rs. 3,61,244.93 as price of agricultural produce sold by Karnail Singh and others to M/s Chaman Lal Kamlesh Kumar and others at their commission agents shop at Samana.
12. Thus, not only the parties but the substratum of the reliefs claimed in both the suits are different, therefore, proceedings in the suit instituted later on, cannot be stayed.
13. Resultantly, this revision petition is allowed. The impugned order is set aside.