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2008 DIGILAW 766 (GAU)

Gomti Devi Sharma v. Chanda Devi Kar

2008-11-04

TINLIANTHANG VAIPHEI

body2008
JUDGMENT T. Vaiphei, J. 1. The two orders passed by the Learned Assistant District Judge, Shillong, namely, (i) the order dated 22.4.2005 in Misc. Case No. 14(H) of 2004 vacating the interim injunction dated 13.8.2004 and directing the O/C, Shillong P.S. to open the lock and seal of the suit shop and (ii) the order dated 22.4.2005 passed under section of the Code of Civil Procedure staying the connected Title Suit No. 18(SH) of 2004, are challenged in this revision petition. 2. The material facts of the case, as pleaded by the Petitioner, are that the husband of the Respondent herein, namely, the late Gurupada Kar, who was her tenant in respect of the suit shop located at Police Bazar, Shillong under Municipality holding No. 87, had surrendered his tenancy on 14.6.2004, but after his death, the Respondent on 16.7.2004 attempted to enter the suit shop by force and other means, which resulted in sealing of the suit shop by the police. This compelled the Petitioner to institute Title Suit No. 18(SH) of 2004 before the Learned. Assistant District Judge, Shillong for declaration of her title to the suit shop, for declaration that the tenancy agreement executed with the husband of the Respondent had no effect and enforceability in law and for permanent injunction. The Petitioner also simultaneously filed Misc. Case No. 14(H) of 2004 before the same court for an interim injunction as well as for directing the police not to allow the Respondent and her men from breaking open the lock of the suit shop during the pendency of the connected suit. The court, after hearing the Petitioner, passed the interim injunction order dated 13.8.2004 directing the police not to open the lock of the suit shop or otherwise from allowing the Respondent to break open the lock and to show cause against the prayer for temporary injunction. The Respondent entered her appearance before the court but did not file her written statement or show cause against the prayer for interim injunction. Instead, she filed an application under Section10 read with Order 39, Rule 4 of the Code for staying the suit contending that she herself had instituted Title Suit No. 19(H) of 2004 and Misc. Case No. 22(H) of 2004 before the learned Munsiff, Shillong in respect of the same subject-matter, which was pending for adjudication. Instead, she filed an application under Section10 read with Order 39, Rule 4 of the Code for staying the suit contending that she herself had instituted Title Suit No. 19(H) of 2004 and Misc. Case No. 22(H) of 2004 before the learned Munsiff, Shillong in respect of the same subject-matter, which was pending for adjudication. According to the Petitioner, she had also filed an application under Section 10 of the Code before the learned Munsiff, Shillong. The Petitioner, as the Defendant therein, took the plea of Section 10 of the Code for staying Title Suit No. 19(H) of 2004 and Misc. Case. No. 22(H) of 2004 and had also filed her written statement and show cause in connection therewith. It is also the case of the Petitioner that she filed her written objection against the plea of stay of suit in respect of Title Suit No. 18(H) of 2004 and Misc. Case No. 14(H) of 2004 pending before the learned Assistant District Judge, Shillong made by the Respondent. The learned Assistant District Judge, after hearing the parties, passed the impugned order dated 22-4-2005 staying further proceeding of Title Suit No. 18(H) of 2004 and the other impugned order vacating the interim injunction order passed ex parte and directing the police to break open the lock of the suit shop and hand over possession thereof to the Respondent. It is the specific case of the Petitioner that the suit shop was not in the possession of the Respondent, and had been kept under lock and seal by the police in addition to the lock placed by her because of the pending dispute between her and the Respondent. Taking advantage of the impugned orders, contends the Petitioner, the police in a most illegal and arbitrary manner delivered possession of the suit shop to the Respondent by breaking open the lock of the door of the suit shop. The interference of this Court is, therefore, sought for by the Petitioner in this revision petition. 3. Mr. Taking advantage of the impugned orders, contends the Petitioner, the police in a most illegal and arbitrary manner delivered possession of the suit shop to the Respondent by breaking open the lock of the door of the suit shop. The interference of this Court is, therefore, sought for by the Petitioner in this revision petition. 3. Mr. S. Changkija, the learned Counsel for the Petitioner, contends that the learned Assistant District Judge exceeded his jurisdiction in taking up the plea of the Respondent for staying the suit, namely, Title Suit No. 18(H) of 2004 under Section 10 of the Code when the Respondent had not even filed her written statement and when no issue had been framed in that behalf, and the impugned order staying the suit is, therefore, bad in law and is liable to be set aside. He further submits that there was absolutely no evidence to show that the Respondent was in possession of the suit shop before and after the death of her husband, and the vacation of the interim order dated 13.8.2004 on the basis of such perverse findings and the direction passed by the learned Assistant District Judge upon the police to open the lock and seal of the suit shop and to allow the Respondent to take possession thereof for continuing her business thereon, are illegal and cannot be sustained in law. He, therefore, strenuously urges this Court to set aside the impugned orders forthwith to prevent grave miscarriage of justice. Mr. S.K. Deb Purkayastha, the learned Counsel for the Respondent, supports the impugned orders and submits that no interference is called for in the impugned orders, which are perfectly just and proper on the materials available on record. 4. On going through the materials on record and upon hearing the learned Counsel appearing for the rival parties, the first point for consideration is as to whether the trial court was correct in staying the suit under Section 10 of the Code even before filing of written statement by the Respondent/Defendant and prior to framing of issues. Section 10 of the Code is in the following terms: 10. Stay of suit. Section 10 of the Code is in the following terms: 10. Stay of suit. - No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigation under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation. - The pendency of a suit in a foreign court does not preclude the courts in India from trying a suit founded on the same cause of action. "Shorn of technical jargons, what Section 10 of the Code says is that where the subject-matter of the two suits are one and the same and the parties are also one and the same, under such circumstances, it is the subsequent suit which has to be stayed and not the previous one. The objects underlying Section 10 is to avoid two parallel trials on the same issue by two courts of concurrent jurisdiction, to avoid recording of conflicting findings on issue which are directly and substantially in issue in a previously instituted suit and, finally, to protect a person from multiplicity of proceedings between the same parties. The question is at what stage of the proceedings the previously instituted suit is to be stayed? No doubt, the application under Section 10 of the Code is to be decided after filing of the written, statement as the court will be in a better position to know as to whether the matter in issue in both the suits is directly and substantially the same or not. However, there may be cases where the Defendant, even before filing of the written statement, makes available the copy of the plaint of the earlier suit, or where sufficient materials are already available from the plaint of the Plaintiff itself or otherwise upon which the court can effectively decide as to what the dispute between the parties is. However, there may be cases where the Defendant, even before filing of the written statement, makes available the copy of the plaint of the earlier suit, or where sufficient materials are already available from the plaint of the Plaintiff itself or otherwise upon which the court can effectively decide as to what the dispute between the parties is. In either of those contingencies, in my judgment, the court is not, and cannot be, precluded from staying the latter instituted suit so as to enable the previously instituted suit to proceed with the' trial before the same court, or before the court having concurrent jurisdiction, where the same is pending." I am fortified in my view by the decision of the Calcutta High Court in Ashok Kumar Yadav v. Noble Designs (P.) Ltd., AIR 2006 Cal. 237 , which held that for maintaining an application under Section 10, the Defendant in the suit concerned need not first file his written statement; the Section 10application can be taken up and dispose of even before the filing of a written statement by the Defendant. Therefore, if an application under Section 10 of the Code can be taken up by a court even before filing of a written statement by the Defendant, a fortiori, the court is equally well within its power to consider the application for stay of the suit without first framing of issue in the suit. Thus, it is not necessary for the Defendant to move the court under Section 10 of the Code for stay of suit until he has filed his written statement in the later case. In the view that I have taken, the learned Assistant District Judge did not commit any jurisdictional error in taking up the application filed by the Respondent under Section 10 of the Code for staying Title Suit No. 18(H) of 2004 even though the Respondent had not then filed her written statement or he had not framed any in the suit, more so, when it is the common ground of the parties that this suit was filed by the Petitioner subsequent to the filing of Title Suit No. 19(H) of 2005 by the Respondent before the learned Munsiff, Shillong. No other contention is made by the learned Counsel for the Petitioner on the non-applicability of Section 10 to the facts of this case on other grounds. 5. No other contention is made by the learned Counsel for the Petitioner on the non-applicability of Section 10 to the facts of this case on other grounds. 5. The next question which falls for consideration is as to whether the learned Assistant District has properly exercised his jurisdiction in vacating the ad-interim injunction order passed by him on 13.8.2004. Strong exception is taken by Mr. S. Changkija, the learned Counsel for the Petitioner, to the manner in which the learned Assistant District Judge has chosen to vacate the interim injunction when he was then already seized with the application filed by the Respondent under Section 10 of the Code for staying of the suit pending before him. It is contended by him that once the suit is about to be stayed or has been stayed, it would be a case of improper exercise of jurisdiction on the part of the learned Assistant District Judge to consider the question of vacating the interim injunction already issued by him, and the impugned order vacating the interim injunction, in such circumstances, is not sustainable in law. A plain reading of the provision of Section 10 of the Code does not bar, expressly or by necessary implication, the court from issuing an interlocutory order like temporary injunction. In my opinion, before considering the question of stay of suit under Section 10, a civil court is well within its powers to consider the prayer for issuance of the interim relief and if a plea is raised under Section10, or is accepted, that cannot preclude the court from disposing of an application under Order 39, Rules 1 and 2 read with Section 151 of the Code, This is also the view taken by the Delhi High Court in Sneh Lata Mathur v. Brij Raj Bahadur, AIR 2003 Delhi. 259. If there is any lingering doubt in this behalf, such doubt is now effectively dispelled by the Apex Court in Indian Bank v. Maharashtra State Coop Marketing Federation Ltd., (1998) 5 SCC 69 in approving/recognizing the aforesaid legal position. Though the observation is in the nature of obiter dicta, even the obiter dicta of the highest court of this land is held to be binding upon this Court. Though the observation is in the nature of obiter dicta, even the obiter dicta of the highest court of this land is held to be binding upon this Court. This is what the top court said in para 8 of the judgment: Therefore, the word "trial" in Section 10 will have to be interpreted and construed keeping in mind the object and nature of that provision and the prohibition "to proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit". The object of the provision contained in Section 10 is to prevent the courts of concurrent jurisdiction' from simultaneously trying two parallel suits and also to avoid inconsistent findings on the matters in issue. The provision is in the nature of a rule of procedure and does not affect the jurisdiction of the court to entertain and deal with the latter suit nor does it create any substantive right in the matter. It is not a bar to the institution of a suit. It has been construed by the courts as a bar to the passing of interlocutory orders such as an order for consolidation of the latter suit with the earlier suit, or appointment of a receiver or injunction or attachment before judgment. The course of action which the court has to follow according to Section 10 is not to proceed with the "trial" of the suit but that does not mean that it cannot deal with the subsequent suit any more or for any other purpose. (emphasis mine) 6. Consequently, I hold that there is ho merit in the contention of the learned Counsel for the Petitioner that the learned Assistant District Judge improperly exercised his jurisdiction in vacating the interim injunction issued by him earlier when he was already seized with the application filed by the Respondent under Section 10 of the Code for stay of the suit pending before him. 7. Coming now to the next contention of Mr. S. Changkija, the learned Counsel for the Petitioner, that the learned Assistant District Judge grossly erred in law in vacating the interim injunction dated 13.8.2004 issued by him when the evidence on record establishes the possession of the suit shop by the Petitioner. 7. Coming now to the next contention of Mr. S. Changkija, the learned Counsel for the Petitioner, that the learned Assistant District Judge grossly erred in law in vacating the interim injunction dated 13.8.2004 issued by him when the evidence on record establishes the possession of the suit shop by the Petitioner. It is the case of the Petitioner that the late Gurupada Kar, husband of the Respondent, had already surrendered his tenancy in respect of the suit shop before his death on 14.6.2004 vide the letter bearing the same date and that it was on 16.7.2004 that the Respondent tried to enter the suit shop by force and other means, which resulted in the sealing thereof by the police. On the other hand, it is the case of the Respondent, as reproduced in the impugned order, that her husband had never surrendered his tenancy during his lifetime and on his death, she stepped into his shoes and became the tenant by the operation of the Meghalaya Urban Areas Rent Control Act and that the suit shop was closed for a few days due to illness and the subsequent death of her husband, and taking advantage of the premature death of her husband, the Petitioner and her son, in furtherance of their intention to evict her, threatened her every now and then and even went to the extent of threatening to throw out the stock-in-trade kept in the suit shop. I have carefully made comparative reading of the two versions set up by the rival parties to establish their respective cases. Apart from the letter dated 14.6.2004, which was allegedly authored by the husband of the Respondent surrendering his tenancy over the suit shop, the genuineness whereof is seriously disputed by the Respondent, there is no other evidence at this stage to show as to how and when the Petitioner resumed possession of the suit shop. In my judgment, this disputed document, without anything more, cannot be used as the basis for granting injunction, interim or otherwise. On the other hand, on the own showing of the Petitioner, there is no dispute that the husband of the Respondent was occupying the suit shop till 14.6.2004 when he was alleged to have surrendered his tenancy thereon. In my judgment, this disputed document, without anything more, cannot be used as the basis for granting injunction, interim or otherwise. On the other hand, on the own showing of the Petitioner, there is no dispute that the husband of the Respondent was occupying the suit shop till 14.6.2004 when he was alleged to have surrendered his tenancy thereon. Section 2(f) of the Meghalaya Urban Areas Rent Control Act, 1972 defines the term "tenant" to mean any person by whom or on whose behalf rent is payable for any house and includes every person who from time to time derives title under a tenant. Prima facie, the Respondent can come within the meaning of the term "tenant" of Section 2(f) of the Act as she could step into the shoes of her husband. Under Section 114 illustration (d) read with Section 109 of the Evidence Act, it is provided that when once a certain state of things or relationship is shown to exist, there is a presumption of its continuance, for instance, a partnership, agency, tenancy or other similar relation, once shown to exist, is presumed to continue till it is proved to have dissolved or terminated. Similarly, once there is prima facie evidence to prove possession of the suit shop by the husband of the Respondent on 14.6.2004, which is the case here, the possession of the suit shop by the Respondent, who claims to have stepped into the shoes of her deceased husband, in the absence of contrary evidence, is presumed to continue. Therefore, the learned Assistant District Judge is not wide of the mark in holding, prima facie, that the suit shop was closed and the Petitioner obstructed the Respondent from opening the same leading to the closure and seal thereof by the police and that the Respondent was in possession of the suit shop before and after the death of her husband. Consequently, the learned Assistant District Judge is correct in vacating the interim injunction dated 13.8.2004 and in passing consequential orders upon the police. 8. For what has been stated in the foregoing, there is no infirmity in the impugned orders passed by the learned Assistant District Judge, Shillong calling for the interference of this Court. The revision petition, being devoid of merits, is hereby dismissed. The interim order dated 28.4.2005 passed by this Court is accordingly vacated. 8. For what has been stated in the foregoing, there is no infirmity in the impugned orders passed by the learned Assistant District Judge, Shillong calling for the interference of this Court. The revision petition, being devoid of merits, is hereby dismissed. The interim order dated 28.4.2005 passed by this Court is accordingly vacated. The Officer-in-Charge, Sadar Police Station, Shillong, shall now unlock and unseal the suit shop and put the Respondent into possession thereof within 15(fifteen) days of the receipt of this judgment. A copy of this judgment shall be communicated to the Officer-in-Charge, Sadar Police Station, Shillong for compliance. However, on the facts and circumstances of the case, I pass no order as to costs. Before parting, I wish to make it clear that my observations/findings herein above are merely prima facie in nature, and it shall be open to the trial court to arrive at contrary findings and conclusions as warranted by the evidence on record in the (sic). Petition dismissed