Calcutta High Court
J.C. Roy Chowdhury vs Krishna Paper Board Mills And Anr. on 8 May, 1987
Equivalent citations: AIR1988CAL183, AIR 1988 CALCUTTA 183, (1988) 1 CURCC 925
ORDER Shyamal Kumar Sen, J.
1. This is an application for slay of the suit No. 31 of 1984 (J.C. Roy Chowdhury v. Krishna Paper Mill Board & Anr.) till the final adjudication of the suit No. 9/Cs of 1984 and 13/Cs of 1984 now pending before the Additional Sub-Judge Jagatdri.
2. Defendant 1 who is petitioner 1 herein M/s. Krishna Paper Board Mill a partnership firm instituted a civil suit No. 9/Cs/84 in January 1984 in the court of Addl. Senior Sub-Judge Jagatdri against the plaintiff and M/s. Roy Chowdhury & Company a proprietorship concern of the plaintiff.
3. The case of the defendant 1 who is the plaintiff in the said suit No. 9/Cs./84 before the court of Addl. Senior Sub-Judge, Jagatdri is that on or about 15th Sept. 1982 the plaintiff herein placed an order for supply of mill boards of agreed size and specification on defendant 1. Out of the total quantity of 169 M.T. Defendant 1 had sold and delivered 145.675 M.T. of mill boards for a total value of Rs. 5,56,379.31P Defendant I had duly submitted its invoices in respect of the supplies made by petitioner 1 and the plaintiff had paid an aggregate sum of Rs. 5,27,500 thereby leaving a balance sum of Rs. 32,379.3ip. due and payable by the plaintiff to the petitioner 1. It is the further case of the petitioner 1 that the plaintiff wrongfully cancelled the order for the balance quantity and the petitioner 1 had thereby suffered a loss of Rs. 1272.40p. per M.T. thereby the total loss suffered was Rs. 29,678.73p. According to the petitioner 1 the plaintiff was liable to pay aggregate sum of Rs. 67,564.04p. which the plaintiff in spite of demand failed and neglected and the petitioner-defendant 1 had to institute the aforesaid civil suit No. 9/Cs/84 in January 1984 in the court of Additional Senior Sub-Judge, Jagatdri.
4. Under the similar circumstances defendant/petitioner No. 2 M/s. Krishna Paper Board Manufacturing Company also instituted a suit against the plaintiff herein for its alleged failure and neglect to pay the sum of Rs. 94,051 inclusive of interest in the court of Addl. Senior Sub-Judge, Jagatdri being suit No. 13/Cs/84. Petitioners being defendants 1 and 2 in the above suit are plaintiffs respectively in the two different suits being suit Nos. 9/Cs/84 and 13/Cs/84 in the court of Addl. Senior Sub-Judge, Jagatdri against the plaintiff.
5. It is the case of the plaintiff that he has paid to the defendant a total sum of Rs. 7,77,000/- against the said purchase orders and the plaintiff has overpaid and the defendants are liable to refund the sum of Rs. 1,56,406/-. Apart from the refund of the said sum of Rs. 1,56,406/- the plaintiff has also claimed a sum of Rs. 15,732/- by way of penally for delayed delivery under the contract dt. 21st Dec. 1982 and a sum of Rs. 30,669.50p. for expenses incurred for reprocessing the materials. Pursuant to negotiations between the plaintiff and defendant 1 the plaintiff has been appointed as the sole selling agent by defendant I for sale of mill board manufactured by the petitioner 1 to the Defence Department of the Govt. of India and others. In spite of subsistence of the sole selling agency defendant 1 has been selling mill board to the Govt. of India directly or through defendant 2 without the knowledge or consent of the plaintiff. The plaintiff called upon the defendant No. 1 not to negotiate with the Govt. of India in violation of the sole selling agency agreement. According to the plaintiff he is entitled to continue to act as the sole selling agent and the petitioners have denied such rights.
6. In the premises the plaintiff instituted the above suit with leave underClause 12 for a decree for Rs. 2,23,923.33: declaration that the plaintiff at the material time was and continued to be the sole selling agent of the defendant 1; specific performance of agreement dt. 29th Sept. '82 between the plaintiff and the defendant No. 1 and that the letter dt. 16th April 1982 be adjudged void as against the plaintiff and be directed to be delivered up and cancelled.
7. It is the contention of the petitioners that since the subject matter of the present suit is also the subject matter covering both the aforesaid suits being Suit Nos. 97Cs/84 and 13/Cs/84 in the court of Additional Senior Sub-Judge, Jagatdri the present suit filed by the plaintiff against the petitioners be stayed. It is the further contention of the petitioners that the matters in issue in the above suit are also directly and substantially in issue in the suits instituted by the petitioners before the Subordinate Judge will operate as res judicata in the suit pending in this Hon'ble Court.
8. It is also contended on behalf of the petitioner that the material allegations in the above suit has already been taken by way of defence in the written statement filed by the plaintiff in the suits filed by the petitioners before the Subordinate Judge, Jagatdri, district Ambala.
9. Mr. P. K. Ghosh, learned counsel for the petitioner submitted that the suit filed in this court against the petitioners by the plaintiff be stayed under Section 10 of the C.P.C. He further submitted that this court has inherent jurisdiction to stay the suit in the interest of justice and to avoid multiplicity of proceedings inasmuch as the defence of the plaintiff in the said two suits in Jagatdri taken together constitute the cause of action in the present suit here.
10. Mr. Ghosh cited the decision in the case of Laxmi Bank Ltd., Akola v. Harikisan, reported in AIR 1948 Nag 297 to show that in proper cases a subsequently insliluted suit can be stayed Under Section 151 even though Section 10 of the C.P.C. may not strictly apply. He also urged relying upon the said decision that it is enough that there should he substantial identity of parties in the two suits although there may not be complete identity of parties or a complete identity of subject matter. In that case two suits were filed by a firm carrying on business as Adtiya and Commission Agents for purchases and sales of various articles against one of its constituents named Harikisan one being Civil Suit No. 6B of 1943 was filed by the firm against Harikisan for Rs. 12.868-2-9 being the amount claimed by the said firm on account of the dealings, and transactions of the said Harikisan had with the said firm. The other suit being Civil Suit No. 7B of 1943 also by the firm against said Harikisan for recovery of Rs. 15,202-4-0 drawn in favour of Laxmi Bank by Harikisan and in which the firm was the drawee. These two suits were consolidated and the claim of the firm was decreed on 22nd Sept. 1944 for Rs. 17,216-3-0. The firm filed an appeal against the dismissal of a part of its claim and at the material time the same was pending as first appeal No. 18 of 1945 in the High Court. On 6th Mar. 1946 Harikisan instituted Civil Suit No. 2B of 1946 against the Laxmi Bank, Kishanlal, the sub-agent of Laxmi Bank and the firm Sitaram at Khamgaon for recovery of Rs. 57,094-7-0 made up of Rs. 43.958/- as the Price of 250 bales of cotton on 22nd April 1943 or by way of damages Rs. 11,736-7-0 as interest thereon as 9% per annum. In this suit Harikisan alleged that as on 17th Sept. '42 the firm Sitaram Brindaban pressed Harikisan for a substantial repayment. He applied for a loan of Rs. 14,000/- from the Laxmi Bank on the security of bales of cotton and it was granted to him under the hypothecation bond dt. 17th Sept. 1942. According to the bond 250 out of 496 bales were pawned with the bank and delivered in its custody and the bank paid Rs. 14,000/- to the firm by a cheque for Rs. 14,0007--The price of cotton began to go up and Harikisan wanted the hank to allow him to redeem the 250 bales pawned by him with the bank. It was after much delay on 22nd April 1943 that the reply was received from the bank that these bales were pawned not by Harikisan but by the firm through its managing director and that the pawn was already redeemed in March 1943. Harikisan, therefore, filed on 6th Mar. 1946 the said Civil Suit No. 2B of 1946. It was urged in that suit on behalf of the defendants 1 and 3 that the trial of the said suit should be stayed till the decision of the First Appeal No. 18 of 1945 and this was the subject matter of issue No. 16 framed by the lower court. The lower court treated this as a preliminary issue and rejected the prayer for stay by its order dt. 15th Jan, 1947. Against the said order defendants 1 and 3 made the revisional application which was allowed and the High Court held that the lower court should have stayed the trial of Civil Suit No. 2B of 1946 under Section 10 read with Section 151 of the C.P.C. Mr. Ghosh strongly urged relying upon the said principle decided in the said case by the Nagpur High Court that his application for stay of the suit in this Court should be allowed. He next referred to the case of Jai Hind Iron Mart v. Tulsiram Bhagwandas . Mr. Ghosh cited the case to show that Section 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the legislature in Section 10 that the identity required is a substantial identity. There must be an identity of subject matter, the field of controversy between the parties in the two suits must also be the same, but the identity contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same. In that case it was found that the Calcutta suit was filed by the appellants on a contract dt. 4-11-51, and their case was that the contract was for a sale by them of 1898 tyres to the respondents. Their further contention was that these tyres were according to certain specifications and have contended that the plaintiffs in the present suit failed to take delivery of these tyres and, therefore, they filed a suit for damages for non-acceptance. In the Bombay suit the respondents sued on the same contract of 4-11-51, but their contention was that under this contract they had contracted to purchase only 1600 tyres and not 1898 tyres. Further the contention was that these 1600 tyres were not according to specification but they were according to certain contract quality, and their.grievance in the Bombay Suit was that the tyres which were delivered were not according to contract quality. They, therefore, filed a suit for refund of a certain amount in respect of the price they had paid for tyres which were not according to contract quality and also for damages for non-delivery. It was held that whatever reliefs the appellants might seek in the Calcutta suit and whatever may be the reliefs which the respondents might seek in the Bombay suit, these reliefs were identical to the decision which the court must come to as to what was the contract between the parties. Therefore, if the Calcutta High Court in the previously instituted suit were to decide that the contract was either as the appellant pleaded or as the respondents pleaded, that decision must operate as res judicata in the Bombay suit. The Bombay suit should be stayed under Section 10 until the hearing and final disposal of the Calcutta Suit. Mr. Ghosh next referred to the case of Durgaprasad v. Kanti Chandra Mukerji reported in AIR 1935 Cal 1, to show what would be the real criterion to apply if the second suit is parallel to first suit and under what circumstances the subsequent suit should be stayed. According to the said decision 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 matter rests in the second suit were res judicata by reason of the decision of the prior suit". Mr. Ghosh then cited the decision of Shorab Merwanji Modi v. Mansata Film Distributors . It was held in that case that the expression "cause of action" is not used in Section 10 but that section uses the words "matter directly and substantially in issue". Two persons quarrelling over the same transaction and bringing separate suits with respect to it against each other, cannot be said to have the same cause of action. The matter in issue is the two suits may be substantially the same though different reliefs may have been claimed by the two different plaintiffs on the basis of their respective cases. The fact that one is a suit under the agreement entered into by the parties and the other is a suit dehors the agreement does not make a substantial identity of the subject matter per se impossible. Relying upon the said principle Mr. Ghosh urged that the matters in issue in the two suits before the Subordinate Judge at Jagatdri and the present suit in this court which is subsequent to the said two suits are same and as such the present suit should be stayed by this Court. Mr. Ghosh also referred to the decision in the case of Atula Bala Dasi v. Nirupama Devi to show that it was held by the Division Bench of this court that this court in its original side has inherent jurisdiction to stay proceedings in other courts. It was also held in that case that a court has jurisdiction to postpone the hearing of a suit which is pending before that court. The grounds for such postponement may be as under Section 10 of the C.P.C. or even when the grounds cannot be brought within the four corners of that section the court has an inherent power of staying its own proceedings. Such inherent power to postpone the hearing of a suit, pending the decision of a selected action may be founded on grounds of convenience and is to be exercised to facilitate that real and substantial justice is done. Accordingly Mr. Ghosh submitted that this court has inherent power to stay the suit pending in this court and he urged that the present suit should be stayed. Mr. Ghosh then referred to the decision in the case of Arun General Industries Ltd. v. Rishabh Manufacturers Pvt. Ltd. . In that case it was held that it is enough that the existence of additional party in the suit subsequently filed does not by itself make section inapplicable. In that case there was addition in the subsequent suit of some defendants who are all directors of the plaintiff company in the earlier suit and it was held that the same does not arise any separate and substantial issue as between them and plaintiff in the subsequent suit, the addition of the defendants does not make the subsequent suit any the less a suit between the same parties as in the earlier suit for the purpose of Section 10. It was also held in that case that the subject matter in dispute and issue in the two suits need not be identical in every particular respect. It is enough if the matters in controversy in the two suits are substantially the same. Accordingly Mr. Ghosh submitted relying upon the said principle decided by the Division Bench of this court in the aforesaid case that the present suit should be stayed. Mr. Ghosh next cited the decision of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd., . in that case it was held that the suit should be stayed even if the reliefs are based on different causes of action where the subject matter in controversy between two suits is the same. Accordingly Mr. Ghosh urged relying upon the said decision that even if the causes of action and the reliefs based on therein are different in respect of the subsequent suit filed in this Court, from the reliefs claimed in the earlier two suits the subject matter of controversy. involved in the earlier two suits filed before i the Court of Subordinate Judge at Jagatdri and the subsequent suit filed in this court it is proper that the subsequent suit filed in this court should be stayed.
11. Mrs. Ruma Pal, learned counsel for the respondent strongly opposed this application and submitted that the present application is beyond the scope of Section 10 of the C.P.C. and the said section cannot have any application in the facts and circumstances of the present case. It is her contention relying upon Section 10 of the C.P.C. that the said section contemplates one earlier suit and there is no scope for taking into consideration the plaints in two earlier suits. In this case parties to the two civil suits and the subject matter of the said two suits filed at Jagatdri in Madhya Pradesh have to be clubbed together and to compare the same to find out if at all the provision of Section 10 of the C .P .C. can be made applicable thereby. But the scope of Section 10 according to her is not so wide so as to compare two earlier suits for the purpose of bringing the same within the purview of Section 10 of the C.P.C. She further urged that there may be the possibility of conflict of decisions in two separate suits filed in the court of Sub-Judge at Jagatdri. According to her language of Section 10 has to be strictly construed and in that event there is no scope for scrutinising plaints in more than one suit because that leads to absurdity and in that event there may be also petition before the court that plaints in several suits have to be considered and clubbed together and the parties will urge that by clubbing together several suits, the subsequent suit should be stayed Under Section 10 of the C.P.C. which is not the scope and purpose of the said section. She further submitted that the cause of action in the present suit in this court are not the same as in both the suits filed in the Sub-Judge's court at Jagatdri and even taking issues separately or combined together in both the suits will not cover all the issues. According to her no issue will arise from the additional plea filed in the suit pending in the court at Jagatdri and that the same is only by way of historical narrative. In support of this proposition she cited the case Bepin Behari Mazumdar v. Jogendra Chandra Ghosh. reported in AIR 1917 Cal 248.
12. The question came up before the Division Bench of this court as to what is the meaning of the expression "the matter in issue" it was held by Sir Asutosh Mukherjee as follows : "The defendants invite us to hold that the expression is equivalent to "any of the question 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 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. To take one instance : If a mortgage security includes properties in three districts; there would be nothing to prevent a litigious plaintiff from indulging in the luxury of three suits instituted simultaneously in three different courts for the same relief, namely, a decree for sale on the basis of his mortgage. Section 10 effectively bars this possibility. Similarly it debars the plaintiff from seeking to carry on simultaneously two suits for recovery of the same sum of money. But the section does not go further and does not bar the trial of a suit for rent for a period subsequent to that included in the previously instituted suit for rents; the matters in issue that is the subject-matter in controversy are obviously different in the two suits. In the first suit, the matter in controversy, is, whether A is entitled to recover from B Rs. 5,000 as rent for the year X. In the second suit, the question in dispute is whether A is entitled to recover from B Rs. 3,000 as rent for the year Y. We are unable to hold that merely because the same question may be involved in the two suits, the matters in issue are identical, so as to attract the question of Section 10.
13. Accordingly it was urged by Mrs. Pal relying upon the said decision as also the case of Shaw Wallace & Company Ltd. v.
Bholanaih Mandanlal Sherawala, that merely because some of the issues involved in the said two suits and the subsequent suit in this court are identical will not be sufficient to attract the provisions of Section 10 of the C.P.C.
14. Relying upon the case of Shaw Wallace & Co. Ltd. v. Bholanath Mandanlal Sherawala. , Mrs. Pal urged that the additional plea has been stated in the said suit filed before the Sub-Judge's court at Jagatdri by way of historical narrative and the said court was not necessarily called upon to determine the rights and liabilities of the parties therefrom arising from the alleged illegal termination of the sole selling agency agreement. In that case (Shaw Wallace & Company Ltd. v. Bholanath Mandanlal Sherawala (supra) the respondent firm was appointed by the appellant as its dealer to sell certain goods in the district of Ferrukhabad. The respondents' case in the Ferukkhabad suit is that the said dealership agreement was cancelled by mutual agreement and thereafter certain transactions were entered into between the parties and the respect of those post contract transactions the respondents became entitled to certain sums of money from the appellant, which sums the respondent is seeking to recover in that suit. The defence of the appellant in that suit is that some new arrangements were entered between the parties. The respondents were not entitled to receive any money from the appellant. It was also denied in the written statement that the dealership agreement was terminated by mutual consent as alleged by the respondent in that case. It is further pleaded by the appellant in that suit that the respondents wrongfully repudiated the said dealership agreement and the said wrongful repudiation was accepted by the appellant. During the pendency of the Ferrukhabad suit the appellant has filed the Suit No. 3661/69 in this court claiming damages for wrongful repudiation of the dealership agreement by the respondents and the acceptance of such wrongful repudiation by the appellant resulting in the damages suffered by the appellant with an additional claim arising out of new arrangements pleaded by the respondents in the Ferrukhabad suit. The respondents made the application under Section 10 of the Code and it was allowed by the learned Judge against which the appeal was filed by the appellant. It was held in that appeal that the written statement in the Ferrukhabad suit has raised some of the questions which are also present in the plaint of the Calcutta suit, but unless in both the suits the entire subject-matter in controversy between the parties are substantially and directly the same, it cannot be said that the matter in issue in both the suits is the same. There being no issue in Ferrukhabad suit as to terms and conditions of dealership agreement nor as to its breach in cannot be said that the matter in issue in both the suit is substantially and directly the same. It was also pointed out in that judgment that in the Ferrukhabad suit original dealership contract and the alleged termination was pleaded as part of historical narrative. But both the matters and cause of action in the Ferrukhabad suit arise mainly on the subsequent transaction and the arrangement alleged to have been entered into by and between the parties. Relying upon the said judgment Mrs. Pal submitted that the issues involved in the suit No. 9/Cs of 1984filed in Jagatdri cannot be same as in the present case even though there is an additional plea wherein illegal termination of sole selling agency has been stated by the defendant in the suit by way of additional plea which is only a historical narrative which cannot be the main issue there. Issues involved in the other Civil Suit No. 13/Cs/1984 before the Subordinate Judge at Jagatdri also are not the same as the issues in this suit. Even Clubbing together both the aforesaid civil suits in Jagatdri the issues cannot be the same as in the present suit. In my view there is much substance in the contention of Mrs. Pal that the issues involved in the said civil suit taken separately cannot be the same as in the issues in the present suit pending in this court or even clubbing together the said issues in both the said suits will not cover the entire subject-matter of controversy in the present suit pending in this court. In other words, the decision in one civil suit pending before the Subordinate Judge at Jagatdri will not nonsuit the plaintiff in the present suit.
15. Mrs. Pal then cited the decision in the case of Adhish Chandra Sinha v. Hindusthan Gas & Industries Ltd. . It was held in that case that in order to attract Section 10 of the C.P.C. subject-matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit. In that case the subject-matter of two suits must be identical merely because one of the questions in issue is the same as in the other suit would not make the subject-matter identical. Relying upon the said decision Mrs. Pal urged that merely because some of the issues in the suits filed in the Subordinate Judg's court at Jagatdri are identical with that of the suit pending in this court it does not mean that the entire subject matter of the suits are identical.
16. Mrs. Pal further urged that the true test for determination if Section 10 of the C.P.C. is to be attracted is that whether determination in the earlier suit will put an end to the subsequent suit. Since the prayers in the present case are far wider in nature determination of the earlier suit pending in the court at Jagatdri will not put an end of the suit according to her. In my view even clubbing together of the prayers in both the suits in Jagatdri Court will not cover the prayers in the subsequent suit filed in this Court.
17. Mrs. Pal then cited the decision of Durgaprasad v. Kanti Chandra reported in AIR 1935 Cal 1. Whether a subsequent suit is parallel to a previous suit it was decided by the Division Bench as follows : "The real criterion to apply is this : supposing the first suit is 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. It was argued on the basis of that principle enunciated by the Division Bench in the aforesaid case that the decision in the prior suit pending before the Subordinate Judge's court at Jagatdri will not determine the subsequent suit or in other words the matters raised in the second suit cannot be res judicata by reason of the decision that might be taken in the earlier suits pending in the court of Subordinate Judge at Jagatdri.
18. Mrs. Pal also relied upon the case of Jugometal Trg. Republike v. Rungta & Sons, . It was held in that case by the Division Bench of this Court showing a tabular statement at page 387 of the said report referred to both the prior suit and subsequent suit in respect of their claims and on that basis it was observed that "it is impossible to say that the matters in issue in the second suit are directly and substantially issue in the first. Indeed how can that be when the matter in issue in the second suit is X plus Y and the matter in issue in the first is X only. Relying upon the said decision Mrs. Pal urged that the matter in issue in the present suit includes both the combined suits pending in the court at Jagatdri Plus the issues relating to illegal termination of sole selling agreement and claim for damages which are not covered in the said two suits. In my opinion the said submission of Mrs. Pal is quite correct that the matter in issue in the suit pending in this Court includes the matters in issue in both the suits pending in Jagatdri Courtcombined together plus the issue relating to illegal termination of the sole selling agency agreement. In other words in my view the decision of issues involved in both the suits will not put an end to the entire controversy involved in the subsequent suit pending in this Court.
19. The decision in the case of Shorab Modi v. Mansata Film Distributors, was relied upon by Mr. Ghosh. According Mrs. Pal the decision in the said case does not assist him at all. It is true that in that case also there was an additional party and it was held in that case that "same parties" under Section 10 mean "the parties as between whom the matter substantially in issue has arisen and has to be decided." Complete identity of either the subject matter or the parties is not required. The fact that there is an additional party in the suit filed subsequently does not by itself makes Section 10 inapplicable according to Mr. Ghosh. It may be noted, however, although there is an additional party in the subsequent suit, no allegation was made against the said additional party except that some money was paid to it and under such circumstances the Division Bench observed that the joinder of the said additional party does not make the Section 10 inapplicable and it cannot be held that any separate or substantial issue has been raised thereby. In the case before us the parties in the Suit No. 9/Cs/84 in the Court of Subordinate Judge at Jagatdri are not the same as in the present suit in Calcutta nor the parties in the Suit No. 13/CS/84 pending before the Subordinate Judge at Jagatdri are the same as in the present suit before us.
20. It is also true that the learned Chief Justice has said that the fact that one isa suit under the agreements entered into by the parlies and the other is a suit dehors the agreement does not make a substantial identity of the subject matter "per se impossible" in the case of Shorab Merwanji Modi v. Mansata Film Distributors, of the report, but his Lordship has qualified his own statement by using the expression "per se impossible". The question as to whether the entire field of controversy in both the suits is the same must be determined on the construction of the pleadings in both the suits and, therefore, no new principle has been laid down in that case by the learned Chief Justice.
21. The Learned Chief Justice has further said that "the principal matter in issue" in both the suits must be the same so as to attract the provision of Section 10 of the Code and this view has been followed in the case of Arun General Industries Ltd. v. Rishabh Manufacturer Private Ltd. (supra) and speaking for this Court in that case Mitra, J. says this :
"The matter for determination in the case of an application for stay under Section 10 of the Code is not what the basis of the claim in the two suits, is, but what is the matter in issue in two suits."
22. In my opinion the expression "principal matter in issue" used by the Learned Chief Justice and followed by Mitra J., should be read, understood, and construed in consonance with and subject to the following statement by Sir Asutosh Mukherjee in the case of Bepin Behary v. Jogendra Chandra reported in 24 Cal LJ 514 at p. 516 : (AIR 1917 Cal 248 at p. 249) "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 sence. 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.
23. The decision in the case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. was also relied upon by Mr. Ghosh to show that if the subject matter in controversy between two suits is the same that should be a ground for stay of suit Under Section 10 of the C.P.C. even if reliefs prayed for in the two suits are based on different causes of action. He has further urged relying upon the said decision that as observed in that case by the Division Bench When the subject-matter in controversy is the same it is immaterial that a further question of claim for damages has been raised in the subsequent suit. And that fact that the plaintiff in the Calcutta suit has specifically reserved its right to file a suit for relief should be a consideration for refusing to grant stay. It is the further contention of Mr. Ghosh that further question involved in the Calcutta suit if there be any viz. question relating to termination of .sole selling agency agreement may be proceeded with after the said two suits in Jagatdri are disposed of and till then the above suit may be stayed as was held in the decision in the case of Challapalli Sugars Ltd. v. Swadeshi Sugar Supply Pvt. Ltd. (supra). Considering the facts and circumstances of the case, however 1 am unable to accept that the said principles decided in the said Division Bench can be made applicable in the facts and circumstances of the present case.
24. In my view Section 10 of the C.P.C. has no application in the facts and circumstances of the present case before me. Considering the plaint in a particular suit as for instance Suit No. 9/Cs/84 or Suit No. 13/CS/84 in the court of Jagatdri neither the parties nor the issues will be the same as in this subsequent suit in this Court nor the subject matter of controversy is the same as in the aforesaid two suits in the court at Jagatdri as in this Court. Even by clubbing together the issues in several suits the reliefs prayed therein the same will not cover all the issues or the reliefs in the subsequent suit pending in this court.
25. In the premises in my view there is no scope for application of Section 10 in the present case and this application cannot succeed on that basis even assuming that under Section 13(2) of the General Clauses Act words in the singular shall include the plural and vice versa and it may be that a suit under Section General Clauses of the C.P.C. may contemplate more than one suit on the basis of the aforesaid provisions in the General Clauses Act.
26. Mr. Ghosh has further urged before me that even if Section General Clauses has no application this Court has inherent power under Section 151 to stay its own proceeding and to pass an order for stay of this suit pending in this court I am afraid, the facts and circumstances does not warrant any such exercise of inherent jurisdiction.
27. It is necessary to consider certain relevant dates in this connection. On 7th Jan. 1984 Suit No. 91/CS of 1984 was instituted by Krishna Paper Board Mills, defendant 1 in this present suit in the court of Subordinate Judge at Jagatdri herein for balance of price of goods sold and delivered and for damages on account of wrongful cancellation of order for 23, 325 M.T. On 9th Jan. 1984 Suit No. 13/CS was filed by Krishna Chemical as Proprietor of Krishna Paper Cane Manufacturing Company for balance of price of goods and for interest and damages on account of wrongful cancellation of order in the court of Subordinate Judge at Jagatdri. On 18th Jan. 1984 the present suit was filed by the plaintiff in this court against both the Krishna Paper Board Mills and Krishna Paper Cane Manufacturing Company for :
(a) Decree for Rs. 2,23,923.33;
(b) Declaration that the plaintiff is the sole-selling agent of the defendants and/or defendant 1;
(c) The Specific Performance of sole-selling agency agreement dt. 29th Sept. 1982;
(d) Mandatory injunction restraining the defendants from dealing directly with the Government;
(e) Adjudication of the letter dated 16th April 1983 cancelling sole selling agency as void.
28. Therefore, it is clear that at the time when the plaintiff instituted the present suit in this court they were not at all aware of the suit filed by the defendants in the court of Subordinate Judge at Jagatdri in Madhya Pradesh. Their claim is based on different cause of action and the present suit was filed only few days later than the two suits filed in the Subordinate Judge's court at Jagatdri by the defendants. On 3rd April 1984 written statement was filed by the plaintiff in both the suits. In August 1984 writ of summons in this suit was served upon the petitioners. Instead of making this application in the present proceeding the defendants filed Civil Suit No. 536/84 on 15th Sept. 1984 in the court of Subordinate Judge at Jagatdri against the plaintiff for a permanent injunction restraining the plaintiff from proceeding with the Suit No. 41/84 filed in this court. On 2nd Sept. 1985 the said suit was dismissed by the Subordinate Judge of Jagatdri on the ground that it was not maintainable under Section 41(a) of the Specific Relief Act and it was also held that no part of the cause of action had arisen within the jurisdiction of the said court. On 23rd Dec. 1985 the present application was made.
29. Considering the facts and circumstances as aforesaid and considering the conduct of the parties and also considering the position that the determination of the issues involved in the two earlier suits will not put an end to the controversy between the parties with regard to the several other issues that may be left in this suit in my opinion it is not a proper case where such discretion under Section 151, C.P.C. should be exercised for the purpose of stay of this present suit. In the view as aforesaid this application fails and is dismissed with costs.
30. There will be a stay of operation of this order for two weeks from date.