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2005 DIGILAW 239 (GAU)

Samat Kumar Mundhra v. Suman Kabra

2005-03-18

BIPLAB KUMAR SHARMA

body2005
ORDER B.K. Sharma, J. 1. While issuing notice in this case by order dated 18-2-2005, it was observed that an attempt would be made to dispose of the matter on the returnable date. The respondents have entered appearance through their learned Counsel. The matter has been heard at length.' 2. The defendant in Title Suit No. 14/2004, who is the petitioner in the instant writ petition has assailed the legality and validity of the order dated 24-1-2005 passed by the trial Court dismissing the application filed by the defendant under Section 10 of the CPC read with Section 151. 3. The respondents herein as the plaintiff have instituted Title Suit No. 14/2004 in the Court of Civil Judge (Junior Division) No. 1, Jorhat praying for a decree of khas and vacant possession of the suit premises. The suit has been filed for ejectment of the defendant/petitioner on ground of non-payment of monthly rent and bona fide requirements of the plaintiffs. 4. The defendant/petitioner has entered appearance in the suit by filing written statement. After institution of the said suit by the respondents, the defendant/petitioner has also instituted Title Suit No. 48/2004 before the Civil Judge (Senior Division), Jorhat praying for a decree for declaration of his right for specific performance in respect of the suit premises on ownership basis and for execution and registration of necessary sale deed thereof by the respondent No. 1 herein, since he offered to sell the suit premises in occupation of the petitioner for valuable consideration and that some amount was already paid. 5. Admittedly the suit filed by the present petitioner i.e. Title Suit No. 48/2004 was filed after filing of the aforesaid Title Suit No. 14/2004 by the respondents while the former suit was filed in the Court of Civil Judge (Junior Division) No. 1, Jorhat, the later suit was filed in the Court of the Civil Judge (Senior Division), Jorhat. 6. After filing of the later suit by the present petitioner, he filed an application under Section 10 of the CPC read with Section 151 for stay of further hearing of Title Suit No. 14/2004 filed by the respondents. In the application, narrating the material facts, it was pleaded that both the cases being by and between the same parties, the former suit was required to be stayed. In the application, narrating the material facts, it was pleaded that both the cases being by and between the same parties, the former suit was required to be stayed. Further plea taken in the application was that, in the event of decreeing the later suit, former suit would become infructuous. Accordingly it was prayed to stay the former suit till disposal of the later suit filed by the present petitioner. 7. The respondents filed their written objection against the said petition urging inter alia that the prayer made by the petitioner is contrary to the provisions of Section 10 of the CPO. It was stated in the objection that if the conditions specified in Section 10 of the CPC, were attracted, it was the later suit which was required to be stayed. 8. The learned Civil Judge (Junior Division) No. 1, Jorhat by the impugned order dated 24-1-2005 has rejected the prayer of the petitioner for stay of the former suit. Being aggrieved the petitioner has instituted the present proceeding under Article 227 of the Constitution of India. 9. I have heard Mr, G.N. Sahewalla, learned Senior Counsel assisted by Mr. B. Sarma, learned Counsel for the petitioner. I have also heard Mr. A. Sarma, learned Counsel for the respondents. Placing reliance on the decision of this Court reported in (on the death of Subho Ram Kalita v. Sri Dharmeswar Das Koch) and the decision of the Apex Court reported in AIR 2004 SC 1687 (Chitivalasa Jute Mills v. Jaypee Rewa Cement), Mr. Sahewalla strenuously argued that the findings arrived by the learned Civil Judge in the impugned order dated 24-1-2005 is perverse requiring interference of this Court. He submitted that the suit premises in both the suits being one and the same and in the event of allowing the later suit for specific performance, former suit by and between the same parties would become infructuous and in consideration that aspect of the matter, the learned Civil Judge ought to have allowed the prayer of the petitioner. During the course of argument, he fairly submitted that the provisions of Section 10 of the CPC are not attracted in the instant case. However, he submitted that having regard to the contentions raised by the petitioner, the trial Court ought to have invoked the power and jurisdiction under Section 151 of the CPC. 10. Countering the above arguments of Mr. Sahewalla, Mr. However, he submitted that having regard to the contentions raised by the petitioner, the trial Court ought to have invoked the power and jurisdiction under Section 151 of the CPC. 10. Countering the above arguments of Mr. Sahewalla, Mr. A. Sarma, learned Counsel for the respondents submitted that the instant application under Article 227 of the Constitution of India is misconceived and misplaced. He submitted that the suit itself instituted by the petitioner is a devise to delay the proceeding in the former suit. He submitted that the ingredients as envisaged under Section10 of the CPC which are the conditions precedent for stay of a suit being missing in the instant case, the trial Court rightly rejected the application of the petitioner. He further submitted that there is no question of invoking the proceeding under Section 151 of the CPC when there is express provision in the Court dealing with the particular situation. He placed reliance on the decisions as reported in AIR 2003 SC 3044 (Surya Dev Ray v. Ram Chander); (2003) 1 GlT 403 (Oil and Natural Gas Corporation v. Flotech Consultants) and [1966] 3 SCR 856 Ram Chand and Sons Sugar Mill Pvt. Ltd. v. Kanhayalal Bhargava). 11. I have considered the submissions made by the learned Counsel for the parties and have gone through the materials available on records. There is no dispute that the petitioner who is the defendant in the former suit filed Title Suit No. 48/2004 after institution of the suit by the respondents herein. As against the prayer of the respondents for eviction of the petitioner from the suit premises, the petitioner in the later suit has prayed for specific performance, on the basis of the alleged promise for sale of the suit premises. Thus, if the provisions of Section 10 of the CPC are applied and held to be applicable, as rightly contended by the learned Counsel for the respondents, it is the later suit instituted by the petitioner which may be required to be stayed. However, during the course of argument, learned Counsel for the petitioner admitted, perhaps having realized the fallacy of the plea raised by the petitioner in his application before the trial Court under Section 10 of the CPC, that the provisions of Section 10 are not attracted in the instant case. If that be so, the application filed before the trial Court automatically falls through. 12. If that be so, the application filed before the trial Court automatically falls through. 12. However, the learned Counsel for the petitioner after acceding that the provisions under Section10 of the CPC are not applicable, tried to justify the application filed by the petitioner before the trial Court on the strength of the provisions of Section 151 of CPC. According to him in the event of allowing the later suit, the former suit would become infructuous and thus there is necessity to stay the former suit. Alternatively he made a submission that both the suit should be tried together in one Court. 13. The decision "in Sri Dharmeswar Das Koch (supra) on which learned Counsel for the petitioner placed reliance, a Division Bench of this Court observed that the Courts are not precluded from administering justice, merely because there is no specific provision of law. The inherent powers of the Court are very wide and are residuary in nature and are in addition to the powers conferred specifically by the Code and are complementary to those powers. However, at the same time, it was also observed that before invoking such power, other requirements will be whether such order is considered justified for the ends of justice or for preventing abuse of the process of the Court and whether such an order is expressly or specifically prohibited by any other provisions of the CPC or any other Act. 14. All the observations were made by this Court in the said decision in respect of stay of a later suit. In the instant case, the petitioner has prayed for stay of the former suit. He has also not discharged his burden to establish facts to exercise the discretion in favour of him, as emphasized in the said decision. Even otherwise also the Court in the aforesaid case while recognizing the scope to pass an order under Section 151, CPC also emphasized that such a power cannot be exercised only when such an order under Section 151, CPC is not specifically or expressly prohibited by any other provisions of the CPC. In the instant case the petitioner after having invoked the provisions under Section 10, CPC cannot fall back on the provisions of Section 151, CPC by abandoning the claim made under Section 10, CPC. In the instant case the petitioner after having invoked the provisions under Section 10, CPC cannot fall back on the provisions of Section 151, CPC by abandoning the claim made under Section 10, CPC. In this connection, the observation made by this Court in the aforesaid case in paragraph 16 are quoted below :-- "A Division Bench of this Court in Oil & Natural Gas Commission, Nazira v. Ganesh Prasad Singh relying on 1961 CriLJ 322, Padam Sen v. State of U.P. and Monohar Lal AIR 1962 SC 527 (supra) held that in cases not covered by S. 10, C.P.C. in terms, the Court may, in very exceptional circumstances, stay a suit under Section 151, CPC for the ends of justice or preventing abuse of the process of the Court. However, the Court cannot overlook the well settled principle of law governing the stay of suits. Where there is identity of the subject matter and the Court at least must be satisfied that to allow the subsequent suit to continue would be oppressive or vexatious to the defendant and that the stay would not cause injustice to the plaintiff in the subsequent suit. We agree with this view. This was followed in Mohan Chandra Deka v. Smt. Himani Talukdar, where relying on Manohar Lal (supra), [1965] 2 SCR 186 ; Ram Karandas v. Bhagwandas, [1966] 3 SCR 856 ; Ram Chand Sugar Mills v.Kanhayalal, [1964] 5 SCR 946 ; Arjun Singh v. Mohindra Kumar, it was held that the provisions of Section 10, CPC are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the CPC for dealing with the contingencies of two such suits being instituted, recourse to the inherent power under Section 151, CPC is not justified. Otherwise, however, the hands off attitude of the High Court in revision would not be justified where interference is necessary for the ends of justice AIR 1986 SC 83 were relied on." 15. Otherwise, however, the hands off attitude of the High Court in revision would not be justified where interference is necessary for the ends of justice AIR 1986 SC 83 were relied on." 15. The condition precedent for invoking the provisions of Section 151, CPC i.e. the recourse is necessary for the ends of justice or to prevent abuse of the process of the Court or it is violative of any express or specific provision of the CPC or any other law applicable to the case are also missing in the instant case. 16. In the case of Chitivalasa Jute Mills AIR 2004 SC 1687 (supra), on which the learned Counsel for the petitioner placed reliance, the Apex Court held on the facts of that case that there can be consolidation of two suits under inherent powers of the Court flowing from Section151, CPC. In the said case both the parties to the proceeding instituted two separate suits praying for decree of certain amounts from each other. The Apex Court found on the basis of the two plaints filed by the two parties before two different Courts that the parties were substantially the same. It was also found that the cause of action alleged in the two plaints also referred to the same period and the same transaction i.e. the supply of jute bags between the period from 7-1-92 to 31-12-93. Under those circumstances, the Apex Court observed that the plea raised by one of the parties under Section 10, CPC ought to have been allowed. 17. In the instant case as per the own admission of the petitioner, Section 10 of the CPC is not attracted. In the application filed before the trial Court, the petitioner never prayed for consolidated of the two suits. However, coming to this Court, the petitioner has become wiser and while agreeing that Section 10, CPC is not attracted to the facts and circumstances of the case, made altogether a different prayer for consolidation of both the suits which was not the original prayer before the trial Court. Thus this case is of no help to the case of the petitioner. 18. The decision in Surya Dev Ray AIR 2003 SC 3044 (supra) has been pressed into service by the learned Counsel for the respondents to remind this Court about the scope and ambit of the power under Article 227 of the Constitution of India. Thus this case is of no help to the case of the petitioner. 18. The decision in Surya Dev Ray AIR 2003 SC 3044 (supra) has been pressed into service by the learned Counsel for the respondents to remind this Court about the scope and ambit of the power under Article 227 of the Constitution of India. In the said case, Apex Court emphasized that while exercising the power under Article 226/227 of the Constitution of India, the writ Court, will not assume the role of an appellate Court to substitute its own finding arrived at by a subordinate Court. It was further emphasized that care, caution and circumspection need to be exercised during the pendency of any suit or proceeding in a subordinate Court. 19. The case of M/s. Flotech Consultant 2003 (1) GLR 403 (supra) was also pressed into service on behalf of the respondents to emphasize the scope and ambit of the power under Article 226/227 of the Constitution of India. In the case of M/s. Ram Chand & Sons [1966] 3 SCR 856 (supra), the Apex Court held that the inherent power of a Court under Section 151, CPC will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are other provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. 20. The aforesaid law laid down by the Apex Court has also been emphasized by the Division Bench of this Court in the case of Dharmeswar Das Koch (supra). The petitioner made an application before the trial Court invoking specific provisions of Section 10 of the CPC. On being confronted with the fallacy of the plea raised under the said provision, the petitioner while invoking the jurisdiction under Article 226/227 of the Constitution of India against the impugned order rejecting the claim of the petitioner made under Section 10 of the CPC, has taken recourse to the provisions of Section 151 of the CPC. On being confronted with the fallacy of the plea raised under the said provision, the petitioner while invoking the jurisdiction under Article 226/227 of the Constitution of India against the impugned order rejecting the claim of the petitioner made under Section 10 of the CPC, has taken recourse to the provisions of Section 151 of the CPC. Thus here is a case, although the petitioner based his case primarily under Section 10 of the CPC, upon rejection of the same by the trial Court, has abandoned his such claim coming to this Court and that too during the course of argument so as to confine the claim only under Section 151 of the CPC which is altogether a different plea not forming the part of the records of the trial Court. I am afraid such a prayer cannot he granted in exercise of the power and jurisdiction under Article 226/227 of the Constitution of India in respect of the impugned order. 21. I have gone through the impugned order passed by the learned Civil Judge. The entire process of consideration of the matter has been discussed by the learned Civil Judge. The provisions of Section10 of the CPC have also been referred to. Upon consideration of all the relevant factors, the learned Civil Judge held that there is no question for stay of the former suit. It has also been held that the matter in issue in the later suit is not directly and substantially in issue in the former suit. It has been found by the trial Court on perusal of the plaints in both the Suits that while the former suit is for a decree for khas and vacant possession of the suit premises and for compensation, the later suit is for declaration of specific performance of contract. The decision on which learned Counsel for the petitioner has placed reliance i.e. Dhareswar Das Koch AIR 187 Gau 73 (supra) was also considered by the learned Civil Judge. Upon consideration of all the relevant factors and the materials available on records including the provisions of Sections 10 and 151 of the CPC, learned Civil Judge, has passed the impugned order dated 24-1 -2004 rejecting the claim of the petitioner. 22. I do not find any infirmity in the findings arrived at by the trial Court. Upon consideration of all the relevant factors and the materials available on records including the provisions of Sections 10 and 151 of the CPC, learned Civil Judge, has passed the impugned order dated 24-1 -2004 rejecting the claim of the petitioner. 22. I do not find any infirmity in the findings arrived at by the trial Court. It gives an impression that the petitioner instituted the later suit to somehow jeopardized the former suit and to delay the proceeding in the former suit. However, no opinion is expressed in this regard, since the matters are sub judice before the respective Courts i.e. the Civil Judge (Junior Division) No. 1, Jorhat and the Civil Judge (Senior Division) Jorhat. Both the proceedings are in different Courts with different jurisdiction. This is also a relevant factor to reject the claim of the petitioner. 23. In view of the above I do not find any merit in this application under Article 227 of the Constitution of India and the same is dismissed. However, there shall be no order as to costs. Application dismissed