Sec 9

Dhulabhai and Ors.
Vs. The State of Madhya Pradesh and Ors.

The appellants are dealers in tobacco and have their places of business at Ujjain. They
purchase and sell tobacco used for eating, smoking and for preparing bidis. They get
their tobacco locally or import it from extra-state places. The former Madhya Bharat
State enacted in 1950 the Madhya Bharat Sales Tax Act (Act 30 of 1950) which came
into force on May 1, 1950. Under s. 3 of the Act every dealer whose business in the
previous year in respect of sales or supplies of goods exceeded in the case of an
importer and manufacturer Rs. 5,000 and in other cases Rs. 12,000 had to pay tax in
respect of sales or supplies of goods effected in Madhya Bharat from 1st May 1950.
Under s. 5, the tax was a single point tax and it was provided that the Government
might by a notification specify the point of the sales at which the tax was payable.
The section also fixed the minimum and maximum rates of tax leaving it to
Government to notify the actual rate.
Government, in pursuance of this power, issued a number of notifications on April
30, 1950, May 22, 1950, October 24, 1953 and January 21, 1954. All these
notifications imposed tax at different rates on tobacco above described on the
importer, that is to say at the point of import. The tax was not levied on sale or
purchase of tobacco of similar kind in Madhya Bharat. The tax was collected by the
authorities in varying amounts from the appellants for different quarters The
appellants served notices under s. 80 of the Code of Civil Procedure and filed the
present suits for refund of the tax on the ground that it was illegally collected from
them being against the constitutional prohibition in Art. 301 and not saved under Art.
304(a) of the Constitution.

The Premier Automobiles Ltd.
Vs.
Respondent:Kamlekar Shantaram Wadke

of Bombay and Ors.
The appellant company carries on a big industry and owns several plants. One such
plant is situated at Kurla, Bombay. In this plant there is a department known as Motor
Production Department. The dispute relates to the workmen of this department. There
seem to be three groups of workmen in the department aforesaid. One group was
represented by Engineering Mazdoor Sabha here in after called the Sabha Union
which is a registered Trade Union and was once a recognized union of the workmen
of the appellant company. Respondents 1 and 2 who instituted the suit in question in
the City Civil Court at Bombay are members of this union. Later on the Sabha Union
was derecognized and another registered Trade Union known as Association of
Engineering workers hereinafter called the Association Union-was recognised by the
appellant company. This Association Union, respondent No. 3, was impleaded as
defendant No. 2 in the action. Besides the members of these two unions, there are
certain workmen who are members of neither.
An incentive scheme providing for certain incentive payments to the workmen of the
Motor Production Department was introduced by the appellant company in pursuance
of agreements entered from time to time between the company and the Sabha Union.
The last of such agreements executed between them was dated the 31st December,
1966. It appears that at the time of the execution of the last agreement there were 425
workmen in the department Broadly speaking the incentive scheme was to make extra
payments at the rate of 3.5 per cent over the basic production of 650 units upto the
target of 900 on every extra production of 25 units. In other words, the workmen were
to get 35 percent. more if they produced 900 units in a month of 25 working days. The
next target fixed was 1250 units payable at the rate of 4 per cent, per 25 units. In other
words, the workmen were to get 35 per cent + 56 per cent total 91 per cent more if
they reached the production target of 1250 per month. It further appears that after the
recognition of the Association Union, 27 more persons who were previously learners
were taken in as regular temporary employees in the Motor Production Department on
and from 1st September, 1970. The strength of the workmen thus according to the
case of the appellant and respondent No. 3 went up from 425 to 452, naturally
necessitating the revision of the norm and target figures of the incentive scheme.
Some sort of arrangement was arrived at between the company and the Association
Union which led to a protest by the Sabha Union in October, 1970. Eventually a
definite settlement in writing was arrived at between the appellant and respondent No.
3 on the 9th of January, 1971 making the settlement effective from 1-9-1970. The
norm figure of 650 units was raised to 725 and the first and the second target figures
were raised from 900 to 975 and 1250 to 1325 respectively. The rates of incentive
payment at 3.5 per cent in the first target and 4 per cent in the second target were
retained. Thus the maximum incentive payment of 91 per cent was kept unaltered.
Broadly speaking, therefore, the increase of 75 units at every stage of the production
was attributable to the addition of the strength of 27 workmen in the Motor
Production Department. The members of the Sabha Union, however, felt aggrieved by
this, because, they thought the 27 newly added workmen were merely learners and
could not be eligible for being taken in the pool of the incentive scheme. It would
adversely affect the incentive payments which were to be made to the existing 425
workmen. According to the case of respondents 1 and 2 they for the first time learnt
about the intention of the company to bring about a change in the service conditions
when the altered scheme was put on the Notice Board on the 15th March, 71. The two
workmen who were the members of the Sabha Union rushed to the court and
instituted their plaint on the 8th April, 1971 in the City Civil Court at Bombay
seeking the permission of the court to institute the suit in a representative capacity
under Order I, Rule 8 of the CPC-hereinafter called the Code- representing the
workmen who were members of the Sabha Union as also those who were neither its
members nor members of the Association Union. On an objection being raised
subsequently respondents 4 to 6 were added as defendants 3 to 5 to represent the 27
disputed workmen.
Sec 10
Indian Bank Vs. Maharashtra State Co-operative Marketing Federation Ltd.
The respondent Federation applied to the appellant Bank on 5.6.1989 to open an
Irrevocable Letter of Credit for a sum of Rs. 3,78,90,000 in favour of M/s. Shankar
Rice Mills. Pursuant to that request the Bank opened an Irrevocable Letter of Credit
on 6.6.1989. The agreed arrangement was that the documents drawn under the said
Letter of Credit when tendered to the appellant Bank were to be forwarded to the
Federation for their acceptance and thereafter the Bank had to make payments to M/s.
Shankar Rice Mills on behalf of the Federation. On 6.2.1992 the Bank filed Summary
Suit No. 500 of 1992 in the Bombay High Court under Order 37 of the Code against
the Federation for obtaining a decree for Rs. 4,96,59,160 alleging that" the said
amount has become recoverable under the said Letter of Credit. The Bank took out
summons for judgment (No. 278 of 1992). The Federation appeared before the Court
and took out Notice of Motion seeking stay of the summary suit on the ground that it
has already instituted a suit being Suit No. 400 of 1992 against the Bank for recovery
of Rs. 3,70,52,217.88 prior to the filing of the summary suit.

Raj Spinning Mills, Amritsar Vs.
 A.G. King Ltd., Excelsior Mills
A contract was entered into on the 30th January 1947 between the petitioners, Raj
Spinning Mills of Amritsar, and the opposite party, A. & G. King Limited, for the
supply of certain machinery of the value of £ 12,806-10-3 out of which £ 2,250
had been paid by the petitioners to the opposite party as part of the purchase price.
The petitioners brought a suit for the recovery of £2,250 on the 28th January 1948
alleging a breach of contract on the part of the opposite party. The suit was dismissed
on the 11th July 1950 and an appeal has been brought to this Court against this decree
which is Regular First Appeal No. 237 Of 1950.
Before the appeal was filed in this Court the opposite party brought a suit on the 26th
August 1950 at Amritsar against the petitioners for the recovery of the balance of the
money due to them. The petitioners applied to the trial Court for the stay of the suit
which had been brought by the opposite party under Section 10 of the Code of Civil
Procedure. It was dismissed on the 24th July 1951 and a revision was brought to this
Court which has, by an order dated the 4th December 1951, been referred by my
learned brother to a Division Bench.

Dr. Guru Prasad Mohanty and Ors. Vs. Bijoy Kumar Das
The two suits in question in the Present case are Title Suit No. 233 of 1931 and Title
Suit No. 149/494 of 1981/1983. The former was filed on 3-10-1981 in the Court of
the Subordinate Judge. Cuttack and the latter in the Court of the First Munsif, Cuttack
on 16-11-1981. By order dated 5-7-1983 of the District Judge, Cuttack Title Suit No.
233 of 1981 was transferred to the Court of the Additional Sub-Judge, Cuttack. Again
by 12-9-1983 both the suits were transferred to the Court of the Subordinate Judge,
Cuttack. On 15-4-1982 the petitioners (defendants in the said suit) filed an application
under Section 10, Civil P. C. in Title Suit No. 149/494 of 1981/83 for stay of the
further proceedings of the said suit till disposal of the Title Suit No. 233 of 1981. On
the other hand, the opposite party (plaintiff in the suit) filed an application on 27-9-
1983 for analogous hearing of the suit with Title Suit No. 233 of 1981. Each party
filed objection to the petition filed by the other. The trial Court after hearing the
parties on their respective petitions, by his order dated 1-10-1983 rejected the
application of the petitioners for stay under Section 10, Civil P. C. and accepted the
application filed by the opposite party for analogous hearing of both the suits. This
order of the learned Subordinate Judge is impugned in this revision petition.

Sec 11.

Satyadhyan Ghosal and Ors. Vs. Deorajin Debi and Ors.

the landlords who having obtained a decree for ejectment against the tenants, Deorajin
Debi and her minor son, on February 10, 1949, have not yet been able to get
possession in execution thereof. Soon after the decree was made the Calcutta Thika
Tenancy Act, 1949, came on the statute book. On March 3, 1949, the tenants made an
application under Or. 9, r. 13 of the Code of Civil Procedure for having the decree set
aside. That application was dismissed on July 16, 1949. On September 9, 1949, an
application was made by the tenants under s. 28 of the Calcutta Thika Tenancy Act
alleging that they were Thika tenants and praying that the decree made against them
on February 2, 1949, may be rescinded. This Application was resisted by the
landlords, the decree-holders, and on November 12, 1951, the Munsif holding that the
applicants were not Thika Tenants within the meaning of the Thika Tenancy Act and
accordingly the decree was not liable to be rescinded dismissed the application.
Against this order the tenants moved the High Court of Calcutta under s. 115 of the
Code of Civil Procedure. By the time the Revision Application was taken up for
hearing the Calcutta Thika Tenancy Ordinance had come into force on October 21,
1952, and the Calcutta Thika Tenancy (Amendment) Act, 1953, had come into force
on March 14, 1953.
The 1953 Amendment Act inter alia omitted s. 28 of the original Act. In order to
decide therefore whether the application under s. 28 was still alive the High Court had
to consider the effect of s. 1(2) of the Calcutta Thika Tenancy Amendment Act which
provided that the provisions of the Calcutta Thika Tenancy Act, 1949, as amended by
the 1953 Act shall apply and be deemed to have always applied to proceedings
pending on the date of the commencement of the Calcutta Thika Tenancy Ordinance
of 1952. The learned judges of the High Court held that s.1(2) of the Thika Tenancy
Amendment Act did not affect the operation of s. 28 of the original Act to these
proceedings and disposed of these applications on the basis that s. 28 was applicable.
The High Court also held that in view of the amended definition of the term "Thika
tenant" and the evidence which had been recorded by the Munsif the petitioners must
be found to be Thika tenants. Accordingly they allowed the application for revision,
set aside the order of the Munsif by which he had dismissed the application under s.
28 and remanded the case to the Munsif's Court for disposal in accordance with law.
After remand the Munsif rescinded the decree. The landlords' application under s. 115
of the Code of Civil Procedure against the Munsif's order was rejected by the High
Court. The attempt of the landlords to raise before the High Court again the question
of the applicability of s. 28 was unsuccessful, the learned judge who heard the matter
in the High Court being of opinion that this question as between these parties was res
judicata.

Lal Chand (Dead) by Lrs. and Ors. Vs. Radha Krishan

The respondent Radha Krishan who owns house No. 142, Katra Mashru, Delhi let out
a portion thereof consisting of five rooms on the ground floor and two rooms on the
second floor to one Lal Chand. He filed suit No. 42 of 1958 in the Court of the sub-
Judge, Delhi for evicting Lal Chand and four others : Kesho Ram, Jhangi Ram, Nand
Lal and Smt. Kakibai, alleging that Lal Chand had sublet the premises to them. The
eviction of these persons was ought by the respondent on the grounds that (1) he
required the premises for his own use and occupation; (2) he wanted to provide
certain essential amenities for himself necessitating re-construction; and (3) that the
tenant was in arrears of rent By his judgment dated June 6, 1959 the learned Sub-
Judge, First Class, Delhi decreed the suit on the first ground only and rejected the
other two contentions. In on appeal filed by the defendants, the learned Senior Sub-
Judge, Delhi confirmed the finding of the Trial Court that the accommodation at the
disposal of the respondent was insufficient, but he thought that the needs of the
respondent would be met adequately if he were given possession of the two rooms on
the second floor only. Feeling however that there was no provision in the Delhi and
Ajmer Rent Control Act, 1952, under which the suit was filed, for giving possession
of a part of the demised premises to the landlord, the learned Judge confirmed the
decree of the Trial Court. The Circuit Bench of the Punjab High Court at Delhi upheld
that judgment on 6-2-1962 in Civil Regn. No. 609-D of 1960 on the ground that the
landlord required the entire premises for his personal use and occupation.
Since the suit property is situated in a slum area, the respondent filed an application
under Section 19(2) of the Slum Areas (Improvement and Clearance) Act, 96 of 1956,
for permission of the competent authority to . execute the decree for possession
obtained by him against Lal Chand and others. The competent authority after taking
into account the factors mentioned in Section 19(4) of that Act, passed an Order
permitting the respondent to execute the decree in respect of the two rooms situated
on the second floor only. Respondent was expressly refused permission to execute the
decree in regard to the premises situated on the ground floor.
Aggrieved by that Order, the respondent filed an appeal to the Administrator under
Section 20 of the Slum Clearance Act, 1956. The appeal was heard by the Chief
Commissioner of Delhi who confirmed the Order of the competent authority.
Pursuant to his Order, the defendants handed over possession of the two rooms on the
second floor to the respondent.
This, however, was not the end of the matter. Having obtained possession of a part of
the premises, the respondent embarked upon a fresh round of litigation giving rise to
this appeal. He filed a regular Civil Suit No. 435 of 1966 against Lal Chand, Kesho
Ram and Jhangi Ram for possession of the remaining rooms on the ground floor. That
suit was decreed by the Trial Court on May 4, 1967. Nand Lal and Kakibai were not
impleaded to the suit presumably because they had surrendered possession of the two
rooms on the second floor in pursuance of the Order passed in appeal under the Slum
Clearance Act.