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TMI Blog1952 (7) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to appeal No. 58 of 1953, which is from an order of the learned Judge refusing to issue an injunction against the respondents restraining them from proceeding with the Calcutta suit, a preliminary objection is taken by Mr. Bhabha. It is clear that that order is made under Section 151, Civil P.C. A party cannot be restrained from proceeding with an earlier instituted suit under Section 10. He can only be restrained under the inherent powers of the Court and those powers are exercised when the Court is of the opinion that the suit constitutes an abuse of the process of the Court or has been filed mala fide or in order to forestall the suit which the defendant would have filed in another Court. Now, Mr. Bhabha says that the decision of the learned Judge does not constitute 'judgment' within the meaning of Clause 15 of the Letters Patent and Mr. Bhabha is supported by the authority of a divisional bench of this Court reported in -- 'Venichand v. Lakhmichand Maneckchand', 44 Bom 272. The very point came up for decision before Sir Norman Macleod, Chief Justice, and Mr. Justice Heaton and they took the view, following the well-known case of -- 'The Justices of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore they filed a suit for damages for non-acceptance. In the Bombay suit the respondents sued on the same contract of 4-11-1951, but their contention was that under this contract they had contracted to purchase only 1,600 tyres and not 1,898 tyres. Further the contention was that these 1,600 tyres were not according to specifications but they were according to certain contract quality, and their grievance in the Bombay suit was that the tyres that 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. This is the nature of the two suits and the question arises whether looking to the nature of these two suits it could be stated that the matter in issue in the Bombay suit is directly and substantially in issue in the Calcutta suit. Apart from any authority, turning to the section itself, it will be clear 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n issue in the Bombay suit is directly and substantially in issue in the earlier suit. Then the learned Judge accepts the test laid down in -- 'Durgaprasad v. Kantichandra Mukerji', 61 Cal 670 and describes the test as. whether a previously instituted suit and a subsequently instituted suit are parallel is that if the first was determined, the matters raised in the second suit would he res judicata by reason of the decision of the prior suit. The other decision is the earlier decision of Mr. Justice Madgavkar in -- 'Dinshaw v. Galstaun', 29 Bom LR 382 the learned Judge points out: ...the object of the section still remains what it was the is referring to the amendment), viz., to avoid a conflict of judicial decision. In the view which I take, the cause of action as disclosed in the pleadings, the matter directly and substantially in issue, and the relief claimed, are three connected parts of the same legal structure and must be viewed both singly and as a whole. And I propose to consider the question in this light and to ask myself, firstly, what the matter directly and substantially in issue in each of the two suits here and in the suit in Bengal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the Bombay suit. Now, it is clear that what we meant in that judgment was not that the Bombay suit must be completely and entirely put an end to by the decision of the Calcutta suit. That can never be. What we meant was that effectively and substantially the decision of the Calcutta suit must put an end to the Bombay suit, and we made it clear what we meant by putting an end to the Bombay suit and what we meant was that the decision in the Calcutta suit must operate as res judicata in the Bombay suit. Applying that test here, in our opinion the test is satisfied because if once the Calcutta High Court has held what the contract was between the parties and what the terms of the contract were, the Bombay suit would effectively be put an end to because that decision would bind the parties and all that will be required to be done would be to give the necessary reliefs to the respondents in the Bombay suit if they have succeeded and those reliefs will flow from the decision of the Calcutta High Court and will be consequential upon the decision of the Calcutta suit. Therefore, in our opinion, the learned Judge below, with respect to him, was in error when he took the view th ..... 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