JANNA NA DE MALUCHO TEXTILE MILLS LTD., KOHAT vs WAQAR AHMAD

1. MUHAMMAD YAQUB ALI, J.-The appellant has filed a suit in the Court of Senior Civil Judge, Kohat, for recovery of Rs. 15,000 from the respondent who under a written agreement had acted as their Commission Agent for the sale of textile goods at Lyallpur. On a subsequent date the respondent filed a suit in the Court of Civil Judge, Lyallpur, for rendition of accounts against the appellant and recovery of such sums as may be found due to him.

2. The appellant moved the Lyallpur Court under section 10 of the Code of Civil Procedure to stay the proceedings is the suit filed by the respondent on the ground that the suit filed by him at Kohat was prior in date. The prayer was refused as, in the opinion of Civil Judge, there was no complete identity of the subject-matters of the two suits to attract the provisions of section 10, C. P. C.

3. On his part the respondent applied for grant of a temporary injunction to restrain the appellant from proceeding with the Kohat suit on the ground that he was mortally afraid of going there and that suit filed by him at Lyallpur was comprehensive enough to include the subject-matter of the Kohat suit.

4. The application was resisted by the appellant, but the Civil Judge granted the stay order on 12-1- 1970. The order was vacated on appeal by the Additional District Judge, but on a further Revision Petition filed by the respondent a learned Judge of the High Court restored the order of the Civil Judge restraining the appellant from proceeding with the suit filed by it at Kohat.

5. The learned Judge found that the temporary injunction was issued under section 151, C. P. C. And not under Order XXXIX, rule 2, C. P. C. No appeal, therefore, lay from the order of the Civil Judge under Order XL, rule 1, to the District Judge. On merits he found that the suit filed by the respondent was com--prehensive enough to include the relief claimed by the appellant in the suit filed by it at Kohat.

6. It was contended on behalf of the appellant that section 56(b) of the Specific Relief Act was a bar to the grant of the injunction asked for by the appellant as in effect it amounted to staying proceedings in a Court not subordinate to the Civil Judge, Lyallpur, but on an exhaustive review of decided cases the learned Judge ruled out the contention as proceedings in the Court of Senior Civil Judge, Kohat, were not being stayed, but only the appellant who had submitted to the jurisdiction of the Lyallpur Court was personally restrained from proceeding with the suit.

7. Leave to appeal was granted to consider the correctness of the view formed by the High Court that section 56(b) of the Specific Relief Act was not applicable to the temporary injunction issued by the Civil Judge, Lyallpur, restraining the appellant from proceeding with the suit filed by it at Kohat.

8. On examining the judgment of the High Court we find a basic contradiction in the reasoning on which the judgment delivered by it proceeds The suit filed by the appellant being prior in date it was incumbent on the Civil Judge, Lyallpur, to stay the proceedings in the suit filed by the respondent if there was identity of subject-matters in the two suits. He, however, rightly held that section 10 was not attracted and dismissed the application filed by the appellant in this behalf. But in that case the respondent too could not ask for an injunction to restrain the appellant from proceeding with the suit filed by it at Kohat. The reliefs claimed in the two suits were different and there was no risk of contradictory decrees being passed by two different Courts on the same issues.

9. Assuming that the appellant were to succeed in obtaining a decree for recovery of Rs. 15,000 from the respondent, the later nevertheless can obtain a decree for rendition of accounts and payment of such sums as are found due to him if the facts of the case so warrant. Both the suits should, therefore, have been permitted to proceed on their own merits. This aspect of the case was completely ignored by the learned Judge in the High Court.

10. It is unnecessary to give any considered opinion on the view expressed in the decided cases examined in the High Court that section 56(b) of the Specific Relief Act is not a bar to restrain a party from prosecuting a suit in another Court not subordinate to the Court issuing the injunction.

11. Most of the cases are distinguishable on facts, but it may be pointed out that the correct rule is laid down by the Lahore High Court in Chaudhri Mohammad Afzal v. Mst. Sardar Begum (PLD 1949 Lah.

12. 16). According to the decision in this case if there was a common issue arising in both the suits, then the trial of that issue in the Lyallpur suit should have been stayed and not vice versa.

13. The conclusion we have reached is that the two suits should be allowed to proceed on their own merits and that it was incorrect to restrain the appellant from proceeding with its suit filed at Kohat.

14. The appeal is, accordingly, allowed and order passed by the Civil Judge, Lyallpur, restraining the appellant from proceeding with the suit filed by it at Kohat for recovery of Rs. 15,000 from the respondent is set aside.

15. There will be no order as to costs.