Law: Civil Procedure Code (V of 1908)

Section: 10,151,11

(a) Civil Procedure Code (V of 1908), S. 10---Substantial differences in two suits -First suit for mere declaration that property is waqf and consequently alienations of it void and ineffectual---­Second suit adopting these pleas and further alleging that plaintiff is mutawalli of waqf -Also asking for possession of property and mesne profits-Second suit should not be stayed though the trial of pleas common to both suits should be held up in second suit till decision of the first suit. Section 10, Civil Procedure Code bars the trial of a suit in which "the matter in issue is also directly and substantially in issue is a pre­viously instituted suit between the same parties." It is clear that matter in issue in the second suit is not precisely the same as in the first suit. The mere fact that one or two issues are common to the two suits viz., whether the property is waqf and whether the alienations are void is not sufficient for bringing the suit within the scope of section 10. I L R 51 All. 1017 approved. (b) Civil Procedure Code (V of 1908), S. 151---Stay of suit, when can be ordered-Scope, Held, that except where it is necessary in order to secure the ends of justice or to prevent abuse of the process of the Court, order for stay of suit cannot be made under that section. 1441 C 107 AIR 1929 Lah. 12 I L R 33 Cal. 927, AIR 1942 P C 8 and A I R 1931 P C '263 distinguished. Also that the views expressed by their Lordships of the Privy Council in A I R 1942 P C 8 and A I R 1931 P C 263 would be duly respected, if the second suit were allowed to proceed in respect of the additional claims of the plaintiff. Further, that it is an error to suppose that section 151, Civil Procedure Code confers any new power on the Courts. The inherent powers to act ex debito justitiae and to prevent abuse of powers existed before the Code became law. Since the Code contains detailed and express procedural provision to cover nearly every contingency which might arise in the exercise of civil jurisdiction, the maxim expressio unius est exclusio alterius might have been invoked to support the argument that the Courts could exercise no power which was not expressly given by the Code.…

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