An application under Section 10 of the Code of Civil Procedure can be entertained before filing the written statement and the trial court has jurisdiction to entertain and dispose of such an application on merits.

1. In connection with certain contract for the sale of cotton by the plaintiff-respondent Firm to the defendant-petitioner, a suit was filed by the petitioner Firm at Kanpur on April 29, 1972, for the recovery of Rs. 2,125. Subsequently, on August 17, 1972, the respondent-Firm filed a suit for the recovery of Rs. 5,454.21 paise at Dhuri. In the suit filed at Kanpur, Dharam Chand described himself as the sole-proprietor of Messrs. Rup Chand Dharam Chand. The only defendant in that suit is the Firm Messrs. Basant Lal Banarsi Lal of Dhuri. In the suit filed at Dhuri by Messrs. Basant Lal Banarsi Lal, Messrs. Rup Chand Dharam Chand is the first defendant and one Hans Raj Sharma is arrayed as defendant No. 2. Whereas the Kanpur suit mentions the date of the contract in dispute as August 25, 1969, the relevant date cited in paragraph 3 of the plaint of this suit is August 23, 1969. The description of the goods and the rates etc. are, however, the same. In the suit filed at Dhuri, a sum of Rs. 64.07 has been claimed on account of the balance of some previous dealings in addition to the damages claimed for breach of the contract in dispute.

2. On the date fixed for filing the defendants written statement, that is on January 15, 1973, the defendant-petitioner filed application under Section 10 of the Code of Civil Procedure (without filing his written statement) for staying the Dhuri suit on the ground that the Kanpur suit had been instituted earlier and related to the same dispute. By his order dated April 20, 1973, Shri Sarwan Singh Chahl, Subordinate Judge First Class, Dhuri, dismissed the application of the petitioner on two grounds, namely (i) that Exhibit D-2, the certified copy of the plaint of the Kanpur suit, had not been properly proved; and (ii) that the application under Section 10 of the Code of Civil Procedure could not be entertained before the written statements had been filed.

3. Mr. Harbans Lal, the learned counsel for the respondent submits that the certified copy of a plaint is not a public document and cannot prove itself by merely having been tendered in evidence. In this case, however, Dharam Chand had appeared as A.W. 1 and given a lengthy statement in the course of which he proved the certified copy of the plaint Exhibit D-2. The deposition of A.W. 1 has been scribbled by the learned Subordinate Judge in such a way that neither I nor my Reader nor any of the counsel for the parties has been able to decipher anything from the statement of A.W. 1-Dharam Chand. I was at one stage inclined to send for the learned Subordinate Judge to see if he himself could read the same or not. In view, however, of the admitted fact that the certified copy of the plaint was proved in the course of the statement of A.W. 1 and not by having been merely tendered in evidence, I have not adopted that course. The application under Section 10 of the Code of Civil Procedure was supported by the affidavit of Hans Raj Sharma, Exhibit D-3, on behalf of the defendant-petitioner. Mr. Bhagirath Dass, the learned counsel for the petitioner, says that Hans Raj Sharma was a mere representative of the petitioner and that even the respondents have referred to him in their plaint only as the person who talked to the respondents on telephone on behalf of the petitioner.

4. I am inclined to think that the certified copy of the plaint had been properly proved in this case by the statement of A.W. 1 and the learned Subordinate Judge had, therefore, no jurisdiction to rule it out of consideration.

5. So far as the stage at which an application under Section 10 of the Code of Civil Procedure has to be considered is concerned, it is not the universal rule that the application cannot be entertained before filing the written statement. Mr. Bhagirath Dass has relied on a judgment of the Calcutta High Court in S. K. Rungta and Co. (Jute and Seeds) V/s. Nawal Kishore Debi Prosad, AIR 1964 Cal 373, wherein it has been held that though normally the Court w