1. This Revisional Application is directed against the order passed on the 14th September 1968 by Mr. A. B. Miyanjee, Munsif, 3rd Court, Habiganj, staying further proceedings of the Title Suit No, 155 of 1959 and Title Suit No, 4 of 1966 pending before the same Court.
2. It is the case of the petitioner that he filed Title Suit No, 155 of 1959 in the 3rd Court of Munsif, Habiganj for declaration of title and recovery of khas possession regarding one Jasti 15 pan land and the said suit was decreed on contest and thereafter on appeal the suit was remanded to the said Court for its rehearing after holding fresh local investigation. It is the further case of the petitioner that the opposite-party as plaintiff filed Title Suit No, 4 of 1966 in the said 3rd Court of Munsif, Habiganj for declaration of title and recovery of khas possession for a small parcel of land less than one Jasti and the petitioner as defendant filed written statement to contest the suit and that on the prayer of the petitioner both the suits were ordered to be heard analogously and the date of hearing of both the suits was fixed on the 16th September 1968. The petitioner further states that the opposite-party filed an application against the petitioner for violation of ad-interim injunction granted by the learned Munsif in Title Suit No, 4 of 1966 of the said Court, and, accordingly, the Miscellaneous Case No, 105 of 1968 was started, and the petitioner is contesting the said Misc. Case as opposite-party. The petitioner further submits that on the 14th September 1968 the opposite-party filed a petition praying for staying the hearing of the aforesaid title suits till the disposal of the aforementioned Misc. Case and the learned Munsif without hearing the petitioner on the said day allowed the prayer of the opposite party and stayed further proceedings of the said two suits; and that the petitioner on that very date moved a petition before the learned Munsif praying for vacating the said order staving proceedings of the two suits, but the said petition was rejected by an order on that date, that is, on the 14th September 1968. The petitioner having felt aggrieved by the said order staying further proceedings of the two suits moved this Court and obtained the above Rule.
3. Mr. Nasiruddin Chowdhury, the learned Advocate for the petitioner submits that the impugned order passed by the learned Munsif staying further proceedings of the two suits is arbitrary and without any reason assigned, and as such the learned Munsif acted illegally and with material irregularity in the exercise of his jurisdiction in passing the order.
4. Mr. T. Ali, the learned Advocate for the opposite-party on the other hand raises a preliminary objection as to the maintainability of the revisional application to this Court. His contention is that as the order does not disclose that the learned Munsif has decided the case as contemplated under section 115 of the Code of Civil Procedure and has not determined the rights of the parties the said order is not revisable by this Court. In support of his contention he has referred to two decisions of the Allahabad High Court, one is the case of Madan Mohan v. Kuar Kamla Narain Dube and the other is the case of L. Bal Krishna and others v. Ram Kishuna and others . In the said case of Madan Mohan Sulaiman, C. J. and King, J. following the Full Bench decision in the case of Sultanat Jahan Begum v. Sundar Lal held, that the decision of the Court below under section 10 of the Code of Civil Procedure that it has jurisdiction amounts to a mere finding on a question of law which is the subject-matter of issue and cannot be treated as being in itself a case decided within the meaning of section 115 of the Code and that the mere fact that a separate application for a stay of the proceedings was dismissed would not confer jurisdiction on the High Court to interfere with the order complained of in its revisional jurisdiction. In the other case of L. Bal Krishana and others, Mukherji and Niamatullah, JJ. held that where the Court below decides that it should proceed with the suit, it does not decide a case within the meaning of section 115 of the Code of Civil Procedure and no revision lies and that the question whether the trial of a particular suit or issue should go on or should be stayed, is no question on the merits of the case and the decision of the question cannot be said to be the decision of an issue in the case and that the whole thing relates to a matter of procedure and that a case must be something complete in itself as that it may be treated as independent matter. In the said case it was also held that where the appellate Court has not been informed that the suit was stayed under section 10 of the Code of Civil Procedure and it orders it to be taken up forthwith thinking it to be pending without adequate cause, the Court below, if it proceeds with the suit, acts improperly and that the order of the appellate Court cannot over-ride express provisions of law and it is open to a party aggrieved to ask the Court below to reconsider its order, although no revision is maintainable. The view taken by the Allahabad High Court has not found favour with the other High Courts of the sub-continent. Mr. T. Ali has been fair enough to refer me to the decision in the case of Bibi Gurdevi v. Chaudhuri Mohammad Baksha and others . The Full Bench of the Lahore High Court in the said case held that the word 'Case' under section 115 of the Code of Civil Procedure does not always mean the whole suit and that it is of a very wide import and means any state of facts judicially considered and this meaning is wide enough to include a decision on any substantial question in controversy between the parties affecting their rights, even though such order is passed in course of the trial of the suit and that an interlocutory order deciding a question of this kind as distinguished from purely formal and incidental order is a case decided within the meaning of section 115 of the Code, but it will be open to revision only if the other conditions expressly laid down in section 115 are satisfied and the order has resulted or is likely to result in such gross injustice or irreparable injury as cannot be remedied otherwise than by the exercise of the extraordinary jurisdiction of the High Court at that stage. In the said Full Bench case their Lordships further held that the word 'case' in section 115 is wide enough to include interlocutory orders passed in a suit and that an order by the Court staying a suit before it on receipt of a robkar from the Debt Conciliation Board under section 25, Punjab1 2 3 4 Relief of Indebtedness Act, is a case decided within the meaning of section 115 of the Code of Civil Procedure and, therefore, the same is revisable by the High Court. The Full Bench decision in the case of Buddhoo Lal and another v. Mewa Raw was considered by the said Lahore Full Bench which could not accept the view taken by the Allahabad High Court. The decision of the Full Bench of the Allahabad High Court mentioned above was previously followed in the case of Firm Lal Chand Mangal Sain v. Firm Behari Lal Mehar Chand and the said case was overruled by the Full Bench of the Lahore High Court in 1943 inthe aforementioned case of Bibi Gurdevi after considering the series of decisions of other High Courts of this sub-continent on the point. Mr. All has also referred to the decision in the case of River Steam Navigation Co. Ltd. v. The Commissioners for the Port of Chittagong and another . In the said case Akbar and Asir, JJ. following the Privy Council decision in the case of Joy Chand Lal Babu v. Kamalaksha Chaudhury and others , held to the following effect :- There may be some difficulty in reconciling the decisions of Venkatagiri Ayyanger's case and Joy Chand's case. From the observations of the Privy Council in Joy Chand's case, I am however, inclined to take the view that it is the duty of the High Court to interfere when the discretion has not been exercised by the Subordinate Court according to judicial principles. I may further point out that refusal to exercise revisional jurisdiction by the High Court when the trial Court has declined to try a preliminary issue on a point of law might give rise to the gravest hardship for the party injured who has no right of appeal and a refusal to exercise jurisdiction would mean that the subordinate Judges' unfettered discretion might cause hardship to the injured party. It is true that rule 2, Order XIV vests a large measure of discretion in the trial Court but it must be remembered that this discretion must be exercised in accordance with the established principles of Justice and not arbitrarily or capriciously or without factual Basis. Furthermore, discretion of the trial Courts does not extend to permitting them to ignore or transgress limitations on their powers. The string of decided case makes it clear that if the High Court comes to the conclusion that the Subordinate Court has not exercised its discretion judicially and in accordance with the judicial precedents, it is at liberty to interfere under section 115 of the Civil Procedure Code. I am further of opinion that this Court has jurisdiction to revise an order from which no appeal lies to the High Court also upon the well known principle 'Boni Judicialist Am pliare Jurisdiction'."
5. In the said case after considering several decisions of different High Courts Akbar, J. as his Lordship then was, further observed : "It will not be out of place to observe that in a number of cases it has also been held that the word 'case' in section 115 is wide enough to include interlocutory order passed in a suit and, therefore, the High Court has the power to interfere in revision with such order."
6. Keeping in view the observations made above and the principle of law as enunciated in the aforementioned Full Bench decision of the Lahore High Court and Division Bench decisions of our High Court mentioned above and also the decision of the Privy Council as referred to above I am of opinion that while passing the impugned order in fact, the learned Munsif acted arbitrarily and fancifully in the exercise of his discretion in staying further proceedings of the two suits till the disposal of the Miscellaneous Case which was started by the opposite-party on an application praying for relief by way of attachment of property of the petitioner under sub-rule (3) of Rule 2 of Order XXXIX of the Code of Civil Procedure and also for proceeding against the petitioner for contempt of Court. It appears that in the said application filed on 4-6-68 the opposite-party stated that the petitioner violated the order of ad interim injunction on the 15th of April 1968 ; and even therein no objection was raised to the application filed by the petitioner on the 24th April 1968 for analogous hearing of the aforementioned two suits and the order passed on the said date by the learned Munsif allowing the prayer for analogous hearing of the two suits and fixing the date thereof. Further it appears that although the opposite-party filed the said application on the 4th5 6 7 8 9 June 1968 upon which the Miscellaneous Case was started he did not move till the 14th September 1968 when he filed the objection praying for stay of the hearing of the two suits fixed for hearing on 16th September 1968. In the said objection proceedings of the two suits, the opposite-party simply alleges that they would suffer irreparable loss if the proceedings of the suits were not stayed till the disposal of the Miscellaneous Case. But the learned Munsiff did not give any reason in passing the order on the 14th September 1968 staying all further proceedings of the two suits. From the next order of the said date passed by the learned Munsif it appears that the petitioner could not be present at the time when the petition for stay was taken up for hearing and filed an objection petition for review of the said order and the learned Munsif on that very date passed order rejecting the prayer of the petitioner without assigning any reason whatsoever. From the two orders it is clear that the learned Munsif exercised his discretion fancifully and arbitrarily. This sort of order has always been deprecated by this Court and also by our Supreme Court.
7. Mr. Ali has been candid enough to say that the impugned order passed by the learned Munsif cannot be treated as one under section 10 of the Code of Civil Procedure. But his contention is that the same should be deemed to have been passed under inherent jurisdiction of the Court below under section 151 of the Code of Civil Procedure. Mr. Ali further submits that the learned Munsif was quite alive to the grounds on which the application was filed and he scrutinised the same as mentioned therein while passing the impugned order. This contention of the learned Advocate cannot be accepted as it would appear from the objection petition itself that practically no ground worth consideration has been mentioned in the petition by the opposite-party for staying further proceedings of the two suits. Moreover, it does not appear from the order that the learned Munsif has applied his judicial mind to the case in passing the orders. In the case of Shahzada Mohd.
8. Umar Beg v. Sultan Mahinood Khan, Excise and Taxation Sub-Inspector and others our Supreme Court held to the following effect : "It may also be pointed out with all respect to the learned Single Judge, that he was exercising a limited jurisdiction in revision under section 115 of the Civil Procedure Code which is meant primarily for correcting errors made by the Subordinate Courts in the exercise of their jurisdiction and not those which are made in their discretion, unless the discretion is found to have been exercised fancifully or arbitrarily."
9. I have already noted above that the learned Munsif in passing the orders on the 14th September 191 8 on two petitions really acted arbitrarily and capriciously which will be evident from a mere reading of the said orders. In this context reference may also be made to the decision in the case of Sachindra Narayan Das and others v. Rajani Kumar De and others . From the said decision it appears that a revisional application filed against an order passed under section 10 of the Code was entertained by the High Court. In this connection I may further refer to the decision in the case of Ch. Mohd.v. Mst. Sardar Begum and others . In the said case Cornelius, J. as his Lordship then was, held that the proceeding of the suit concerned in the said case could be stayed under section 151, C. P. C. only for the ends of justice or to prevent abuse of the process of the Courts below and a revisional application arising out of an order passed on an application under section 10 of the Code of Civil Procedure in the said case was entertained. But his Lordship, of course, found that the petition under section 10 of the Code was not maintainable on merit. It is true that the three essential conditions to be considered in an application under section 10 of the Code are (1) that the matter in issue in the second suit is directly and substantially in issue in the first suit ; (2) that the parties in the second suit are the same ; (3) that the Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit. The object of such application as under section 10, C. P. C. is to avoid conflict of judicial decisions by preventing Courts of concurrent jurisdiction from simultaneously adjudicating upon two or more parallel suits in which the 4 matter in issue is substantially the same. It is also true that where section 10 does not strictly apply, for10 11 12 ends of justice suit may be stayed under section 151 of the Code as already noted above. The Court can exercise its inherent power under section 151 in staying proceeding of a suit if it thinks that the suit is an abuse of process of the Court, or has been filed mala fide, or it is a vexatious suit constituting an abuse of the process of the Court, or in order to forestall the suit which the defendant would have filed in another Court. In the instant case before me the order which has been passed by the learned Munsif staying all further proceedings of the two suits may be deemed to have been made under section 151 of the Code but as I have already noted above the learned Munsif has acted fancifully and arbitrarily in passing the said order without considering the facts and circumstances of the case under which the said petition was filed and without assigning any reason, the said order cannot be maintained.
10. From what I have stated above I am of opinion that the preliminary objection of the learned Advocate for the opposite-party as to maintainability of the revisienal application has no substance and I hold that an order of this nature is revisable by the High Court under section 115 of the Code. I further hold that on merit also the said order of the learned Munsif cannot be upheld for the reasons already stated above. Mr. Ali has also submitted that the order for analogous hearing of the two suits should, at least, be set aside by this Court suo motu in the exercise of jurisdiction under section 115 of the Civil Procedure Code. I do not find any substance in the said submission of Mr. Ali as the said order for analogous hearing of the two suits was passed on the 24th April 1968 and the opposite-party did not object to the same. Moreover, I do not find anything on point of law or even on fact which may call upon this Court to interfere with the said order for analogous hearing of the two suits.
11. In the result, this Rule is made absolute with costs and the impugned order passed on the 14th September 1968 is set aside and learned Munsif is directed to proceed with the hearing of the two suits as expeditiously as possible.
12. Let the records of the suits be sent down as expeditiously as possible. AIR 1934 All. 520 AIR 1929 All. 957 AIR 1920 All. 197 AIR 1943 Lah. 65 AIR 1921 All. 1 1924 Lah. 425 AIR 1943 Lah. 65 PLD 1961 Dacca 412 PLD 1949 P C 114 PLD 1970 SC 139 7 D L R 198 PLD 1949 Lah. 69