CHHAGANLAL HARIBHAI Vs. DHONDU CHUDAMAN RANGRI

JUDGEMENT

(1.) WE think that the decree of the Subordinate Judge allowing the claim in the present suit cannot be supported. Suit No. 96 of 1899 was brought on the 16th March, 1899, by the firm of Chhaganlal Haribhai against Dhondu Chudaman and Baba Chudaman to recover on a bond passed to the firm by the defendants. The defence pleaded that the bond was void, being passed for the balance due on wagering transactions. On the 13 Jane, 1899, Dhondu Chudaman, one of the defendants in (she prior suit, brought the present Suit No. 167 of 1899 to have the bond mentioned above cancelled and delivered up to him. He made his brother Baba a co-defendant in the second suit. The Subordinate Judge allowed the claim, but in so doing he failed to notice that the jurisdiction given to him under Section 30 of the Specific Relief Act is dependent upon the exercise of his discretion. This form of specific relief is founded upon the administration of a protective justice for fear (quia timet to use the technical language of English law). In this case there can be no fear that the present plaintiff would suffer serious injury if he did not bring the present suit, for the plea which is the foundation of the present action was raised by him in the defence to the previous suit, and was decided at the same time that this suit was decided. That decision is now under appeal in the Court of the District Judge, Khandeah. The Subordinate Judge considered that the plaintiff had shown unnecessary haste in instituting this suit, which, he said, was superfluous in view of the prior Suit No. 96 of 1899. In that view, with which we concur, he ought to have rejected the claim, and we now do so, reversing his decree.

(2.) PLAINTIFF must bear all costs, but those costs should only be costs incurred in Suit No. 167 of 1899 and not include any of the costs in Suit No. 96 of 1899.