Ahamed Abdul Sukkoor vs Vallabhadas Kanji Firm and Others

Somasundaram, J.—This petition is by the plaintiff against the order of the Subordinate Judge of Coimbatore in I.A. No. 159 of 1948, in

O.S. No. 80 of 1946 of his file.

The plaintiff has filed this suit against the respondents for damages for malicious and wrongful institution of insolvency proceedings against him by

the defendants. I. P. No. 20 of 1942 was filed by the defendants against the plaintiff and the same was dismissed on the ground that no debt was

payable by the plaintiff to the defendants. The defendants thereupon filed two suits, O.S. Nos. 132 and 133 of 1945 against the plaintiff for the

recovery of the sums due under the contract. The two suits were dismissed on the ground that the contracts were of a wagering character. The

defendants have filed appeals against the decision in the two suits and they are A.S. Nos. 164 and 188 of 1948 pending in this Court. This suit, as

already stated, is for recovery of damages for instituting the insolvency proceedings. One of the questions that will have to be determined in this suit

will be whether any sum was due by the plaintiff to the defendants, and the question whether the defendants were justified or had reasonable or

probable cause for instituting the insolvency proceedings will depend largely on the liability or otherwise of the plaintiff to the defendants. This latter

question is now pending decision in the appeal. As pointed out by the learned Subordinate Judge, a good deal of time will be saved by the decision

of that question by this Court.

Apart from this, as the learned Judge has stated in paragraph 8 of his judgment that if on the evidence to be adduced, the Court comes to a

different conclusion on the question of indebtedness of the plaintiff, it will lead to conflict of decisions. There is no doubt therefore that the ends of

justice require that the suit should be stayed pending the decision of the appeals by this Court.

But it is contended by the learned advocate for the petitioner that u/s 151, Civil Procedure Code, the lower Court has no power to stay such

proceedings. His contention is that either Section 10 applies or if it does not, Section 151 '' does not apply. In K.R. Balaji Rao and Others Vs.

M.G. Natesa Chetty, , and S. Komarappa Goundan Vs. S. Ramaswamy Goundan, , Yahya Ali, J., has held that the High Court has jurisdiction

underection 151, Civil Procedure Code, to stay the trial of a suit out of which the proceedings in the High Court do not arise. In K.R. Balaji Rao

and Others Vs. M.G. Natesa Chetty, , the learned Judge has held that the:

only limitation that can be placed upon the exercise of jurisdiction would be that the applicant has no other remedy available to him in law which he

can seek in a competent civil court.

and points out that if he can get a particular suit stayed u/s 10, he must adopt that remedy and if he does not adopt that, we were not entitled to

invoke the provisions of Section 151, Civil Procedure Code. The other condition for the application of Section 151 is that the ends of justice

require it, or it must be to prevent the abuse of process of Court.

The learned advocate for the petitioner does not dispute the correctness of the decision but his contentions are (1) that the High Court only has

such power in the course of other proceedings pending before it and (2) that such power does not vest in the lower Court. He relies for this and

bases his contention on Karuppayya v. Ponnusami (1932) 64 M.LJ. 112 : ILR 56 Mad. 563. In that case it was contended that the High Court

has extraordinary powers, which powers it derives from the Supreme Court. The learned Judge in that case has held that such extraordinary

powers are vested in the High Court in the exercise of its original jurisdiction and so far as the appellate or revisional jurisdiction is concerned, it

can only apply such law or equity and rule of good conscience as would be applied by the mofussil Court. In short, in that particular case, the

learned Judge held that the High Court has no greater power than that conferred on the mofussil Courts under Order 39. As already stated it is not

disputed that the High Court has powers to stay u/s 151 and if so I see no reason why such powers should be restricted to the High Court alone.

The word ""Court"" used in Section 151 is wide enough to include any Court under the Code.

Another contention is that such powers are exercised by the High Court only in the course of proceedings pending before it. No doubt in the

decisions of this Court referred to above, such power has been exercised only in the course of proceedings pending before it, but there is nothing

either in the Code or in those decisions to warrant a limitation to that exercise. No authority is cited in support of this contention. On the other hand

Mulchand v. Jiwandas AIR 1933 Lah. 50, referred to by learned Counsel and the observations in Hukumchand Bold v. Kamalanand Singh I.L.R.

(1905)Cal. 927 show that u/s 151 the lower Court can exercise such powers. In the result I hold that the order passed by the lower Court was

well within its competence. It is a just and reasonable order and I see no reason to interfere with it.

I must say that the learned advocate for the petitioner has been very fair in placing before me all the decisions against him though the respondent

was ex parte. The petition is dismissed.