Sree Jogani Rice and Atta Mills vs Food Corporation of India

K. Lahiri, J.—The quintessence of Section 10 of the Code of Civil Procedure, for short ''''the Code", is to take away the jurisdiction of the court to try the subsequent suit when (i) the matter in issue in (he second suit is also dircetly and substantially an issue in the first suit; (2) the parties in the second suit are the same or parties under whom they or any of them claim litigating under the same title; (3) the court in which the first suit is instituted is competent to grant relief claimed in the subsequent suit; and (4) the previously instituted suit is pending (a) in the same court in which the subsequent suit is brought or (b) in any court in India, or (c) in any court beyond the limit of India established or continued by the Central Government etc. The positive and mandatory command of Parliament is to disable a court to try the subsequent suit if the four conditions set out above are present. The prohibition imposed to try the subsequent suit under the above circumstances is in absolute term and the restriction is imposed upon the court. An extract from Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, will make the position clear:

The provisions of that section are clear, definite and mandatory. A court in which a subsequent suit has been filed is prohibited from procceding with the trial of that suit in certain specified ciroumstances. When there is a special provision in the CPC for dealing with the contingencies of two such suits being instituted, recourse of two such powers u/s 151 is not justified. The provisions of Section 10 do not become inapplicable on a court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract.

[Emphasis added]

The Petitioner Filed his suit earlier in point of time, The opposite party filed the subsequent suit, The Petitioner filed an application u/s 10 of "the Code." The learned Judge found it convenient to resolve the problem by taking resort to an ingenious method by holding that It would be convenient It both the suits were heard nalogously and disposed of jointly by a common judgment. The application of the Petitioner was made ineffective and nugatory by short circuiting and free wheeling.

Mr B. Sarma, the learned Counsel for the Petitioner Sub mits that Section 10 of "the Code" takes away the jurisdiction of a court to try a subsequently instituted suit if the four conditions are present. Counsel submits that all the four conditions alluded were present in the case but the learned'' Judge without applying his mind to the jurisdictional disqualification contained in Section 10 of ''''the Code" rejected the prayer without assigning any reason whatsoever.

It is apparent from the impugned order that the learned Judge did not consider the application u/s 10 of "the Code" and short circuited the issue. If the conditions enjoined in Section of "the Code'''' are present the latter suit cannot be tried by the learned Judge according to the mandatory directive of the section. The Court is subject to the mandate of law. Therefore, it was the dutiful obligation of the court to consider the application on merit The learned Judge could order only upon rejection of the prayer on merit However, without rejecting the application on merit the Judge had no jurisdiction vested in him law to direct analogous and joint hearing of the suits. As such, the impugned order directing analogous hearing, without disposal of the application u/s 10 on merit, was an order rendered without determination of the jurisdiction to try the subsequent suit and as such, the impugned order must fall.

For the foregoing reasons, the application is allowed. The matter is sent down to the loarned Judge for due disposal of the application u/s 10 of "the Code" in accordance with the law, I direct the learned Counsel for the parties to inform the respective parties to appear in the Court of the Assistant District Judge No. 2 at Gauhati on the 8th of April, 1981 to take necessary orders from the loarned Judge.

The petition is allowed, however, there will be no order as to costs.