1. This is a motion by the defendants asking for a stay of this suit upon the ground that there is an earlier suit between the same parties instituted in the Court of the First Class Subordinate Judge at Karwar in which the matter in issue is directly and substantially in issue. The application is supported by an affidavit of defendant 1. The facts which give rise to the question may be shortly stated as follows: The plaintiffs and the defendants carried on business in partnership from 15th November, 1936, in Bombay in the name and style of Keshavlal & Co., and at Kumta and Sirsi in North Eanara in the name and style of Anandrai Himatlal & Co. Defendant 1 used to manage the business of the partnership at Sirsi and defendant 2 used to manage the business of the partnership in Bombay. In the 1940 one Lalohand Haribhai Gandhi, a brother-in-law of plaintiff 1, came to work in the Sirsi branch as a clerk. According to the defendants by his tactless conduct and association with rival traders at Sirsi he was damaging the business of the partnership and sending false reports to the plaintiffs in Bombay with the object of creating prejudice and suspicion Egainst the defendants in the minds of the plaintiff. In consequence of this defendant 2 wrote a letter to defendant 1 at Sirsi dated 9th May, 1941, which among other things said as follows:
“Whatever it may be, may Lalchand fulfil his desire to the fullest extent which will be shortlived. Give him such a medicine that he may not be able to stay in Sirsi. It may be disposed off in four days illness. If (he) harasses too much, clear the way.”
2. That letter came into the hands of Lalchand who handed it over to the plaintiffs. According to the defendants defendant 1 was then summoned to Bombay by the plaintiffs and he and defendant 2 were threatened with a criminal prosecution on a charge of conspiracy to do away with Lalchand and with a charge of criminal breach of trust and defalcation in respect of the partnership accounts, and although defendants 1 and 2 denied the charges, they were coerced into executing three documents, viz. a letter of 28th May, 1941, a deed of dissolution of partnership dated 4th June, 1941, and a mortgage dated Sth June 1941. The letter of 26th May, 1941, is Ex. (1) to the reply of the plaintiffs to the defendants' counter-claim in this suit. It states that on the making up of the accounts the defendants are indebted to the partnership in a sum of Rs. 8000. The deed of dissolution of partnership although dated 4th June, 1941, provides for a dissolution as from 31st October 1940, and the mortgage was to secure payment of the sum of Rs. 8000. According to the plaintiffs no such threats were ever made and the defendants executed the documents to which I have referred because they had been guilty of serious defalcations in connection with the partnership accounts, and consequently agreed to pay Rs. 8000 and further agreed that the partnership should be treated as dissolved as from 31st October 1940.
3. On 19th August, 1941, defendants 1 and 2 filed a suit in the Court of the First Class Subordinate Judge at Karwar for setting aside the documents to which I have referred and for a dissolution of partnership. The plaintiffs were informed of this suit by a letter dated 3rd September, 1941, the summons was served on plaintiffs 1, 2 and 4 in the first week of September 1941, and on plaintiffs 3 and 5 before 23rd September, 1941. The suit in this High Court is a mortgage suit to enforce the mortgage which was executed as a security for the payment of Rs. 8000. It was filed in this Court on 23rd September, 1941. A Commissioner in the Small Causes Court of Bombay was appointed by the Karwar Court to take an inventory of certain books of the partnership in Bombay and he held four sittings between 4th and 9th September at which the plaintiffs were represented by an advocate. The defendants filed their written statement and counter-claim in the Bombay suit on 11th November, 1941. The plaintiffs filed their written statement in the Earwar suit on 9th January, 1942. The Bombay suit came on as a short cause before Chagla J. on 5th November, 1941. A reply to the written statement was ordered within three weeks and the suit was transferred to the long cause list and was directed to be on some board on 2nd March, 1942, without prejudice to the right of the defendants to apply for a stay of the Bombay suit.
4. Before coming to the question whether the matter in issue in this suit is directly and substantially in issue in the earlier suit, I will first deal with the question of delay in taking out this notice of motion which Mr. M.P Amin has urged as a ground for refusing to stay this suit. It is true that the defendants in this suit filed their written statement on 11th November, 1941. The plaintiffs however did not file their reply until 23rd March, 1942, although I am told that a copy of it was supplied to the defendants on or about 9th March, 1942. When a motion of this character comes before the Court it is very usual for the Judge to ask to see the pleadings in both the suits in order that he may determine therefrom whether the matter in issue in the two suits is directly and substantially the same. I can therefore well understand that the defendants may have postponed taking out the notice of motion in order first to have in their hands the reply. Be that as it may, the words of section 10 of the cpc, are mandatory and require that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit. In 42 All. 2901, the Court stayed a suit the trial of which had already commenced when an application was made to the Court to stay the suit under Section 10 of the CPC. In my opinion there is no substance in the point of delay which Mr. Amin has urged.
5. A copy of the plaint in the Karwar suit is annexed as Ex. (2) to the written statement in this case. It sets out the facts to which I have already referred in consequence of which the defendants alleged that they were coerced and induced to put their signatures to the documents in question. The plaintiffs in that suit ask that those documents may be set aside as having been obtained without any consideration and under undue influence, coercion and threats. They ask for an injunction prohibiting the defendants from entering and taking possession of the suit properties in enforcement of the terms of the said documents and they pray for a declaration that the partnership still continues and that the alleged dissolution of partnership from the end of October 1940, is not binding upon them, and that as they intend to retire the partnership may be dissolved and accounts may be ordered. The written statement in that suit is annexed to the affidavit of defendant 1 in support of this notice of motion as Ex. (1). It denies all the allegations in the plaint and alleges that the plaintiffs executed the documents in question of their own free will and that the plaintiffs in the Karwar suit are not entitled to any of the reliefs claimed.
6. The present suit is, as I have already indicated, a mortgage suit pure and simple in which the plaintiffs seek to enforce the mortgage deed of 5th June, 1941. By their written statement the defendants set out the facts to which I have already referred, and claim that neither the mortgage deed, nor the letter, nor the deed of dissolution are binding upon them, and they counter-claim that the deed of mortgage may be declared void and inoperative and that it may be cancelled. Mr. Amin conceds on behalf of the plaintiffs that the issue as to whether the mortgage is or is not binding is the same in both suits. He however contends that the subject-matter of the earlier suit is different from that of the present suit in that it asks for a dissolution of partnership. It is to be borne in mind that the words ‘for the same relief’ which occurred after the words “previously instituted suit” in the earlier Code have been omitted from the present Section 10 of the CPC. I have to determine whether the matter in issue in this suit is directly and substantially in issue in the earlier suit. The matter in issue in the Bombay suit is whether the mortgage deed is binding or whether it was procured by coercion. That is also in issue in the earlier suit. If in the earlier suit that issue is decided against the plaintiffs to the Bombay suit it will operate as res judicata and the Bombay suit if not earlier determined will necessarily fail. In my opinion it is immaterial that the relief claimed in the earlier suit is of a different character from the relief claimed in the present suit. The real question is whether the matter in issue in the Bombay suit is directly and substantially in issue in the earlier suit. In my opinion it clearly is. In the Allahabad case, viz., 42 All. 290, which I have already cited, Piggott J. said (p. 292):
“Nor is it an adequate plea against the order in question to say that there were issues for trial in the former suit which are not in issue in the present suit. The real question is whether the issue as to the validity of the deed of gift requires to be tried in the present suit, and whether it either can or ought to be tried while the appeal is pending in this Court against the decision in the former suit.”
7. I may also refer to 61 Cal. 6702, where it was pointed out that the test whether a previously instituted suit and a subsequently instituted suit are “parallel,” as the Court put it, is that if the first was determined, the matters raised in the second suit would be res judicata by reason of the decision of the prior suit.
8. For the reasons which I have given I am of opinion that the matter in issue in the Bombay suit is directly and substantially in issue in the previously instituted suit. Mr. Amin has urged that the Bombay suit is ripe for hearing and that it will be a great hardship to the plaintiffs to have it stayed. The words of section 10 of the cpc, are however mandatory. I therefore stay this suit. The defendants will have the costs of this notice of motion, viz., Rs. 175.
9. Suit stayed.