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2017 DIGILAW 1388 (GAU)

Biswanath Paul v. Ahi Bhusan Chakraborty

2017-10-30

PRASANTA KUMAR DEKA

body2017
JUDGMENT : Prasanta Kumar Deka, J. 1. Heard Mr. G.N. Sahewalla, learned Senior counsel assisted by Ms. S. Kataki, learned counsel appearing on behalf of the petitioner. Also heard Mr. S. Dutta, learned Senior counsel assisted by Mr. C. Sharma, learned counsel appearing on behalf of the respondent. In this revision application, order dated 09.03.2016 passed in Title Suit No. 172/2008 by the learned Munsiff No. 1, Cachar, Silchar is challenged. The present petitioner is the defendant in Title Suit No. 172/2008 filed by the respondent/plaintiff. The respondent filed the suit for ejectment of the defendant/petitioner from the suit premises as he violated the terms of the tenancy under the Rent Control Act The defendant/petitioner filed his written statement denying the contents including the relation of landlord and tenant between the parties to the said suit. Prior to that the present petitioner as the plaintiff filed Title Suit No. 154/1995 in the court of learned Asstt. District Judge No. 1, Cachar, Silchar against the present respondent as the defendant for Specific Performance of contract with respect to the same suit premises which is the suit premises in the ejectment suit. The said suit for specific performance of contract was decreed against the present respondent who preferred Title Appeal No. 25/2006 before the learned District Judge, Cachar and the said Title Appeal was allowed vide judgment and decree dated 27.06.2012. The present petitioner thereafter preferred RSA 158/2012 in this Court and the same was already admitted and awaiting its disposal. 2. Behind such a scenario the present petitioner preferred the application under Section 10 of Civil Procedure Code, 1908 (CPC) with a prayer to stay further proceeding of Title Suit No. 172/2008. The stay petition was registered as petition No. 994/2011 in Title Suit No. 172/2008. The present respondent against the said application under Section 10 of the CPC filed his written objection thereto raising that the requisite ingredients for invoking the jurisdiction under Section 10 of the CPC by the learned court below are missing and as such the application is liable to be dismissed. The learned court below vide the order impugned herein dismissed the said application under Section 10 of the CPC holding that the requirement of the said provision of the CPC are not attracted in the case in hand. Being aggrieved the present revision petition has been preferred. 3. Mr. The learned court below vide the order impugned herein dismissed the said application under Section 10 of the CPC holding that the requirement of the said provision of the CPC are not attracted in the case in hand. Being aggrieved the present revision petition has been preferred. 3. Mr. Sahewalla, the learned Senior Counsel submits that the subject matter of the suit including the parties and the matter in issue are similar to the one which was filed by the present petitioner. Further, it is submitted that the present petitioner is holding the possession of the suit premises on the strength of the agreement for sale which was once decreed for its performance by the present respondent and that too with respect to the suit premise in Title Suit No. 172/2008. Subsequent thereto the present second appeal is pending as against the reversal of the finding of the trial court. Under such circumstances, the learned court below ought to have invoked the jurisdiction under Section 151 of the CPC for staying the subsequent suit. Relying Mohan Chandra Deka v. Smti Himani Talukdar & Ors. reported in AIR 1985 Gauhati 62, the learned senior counsel submits that this court held that by taking into consideration the ratio laid down by the Division Bench of this Court in ONGC, Nazira v. Ganesh Prasad Singh, held that in cases not covered by the provisions of Section 10 CPC in terms the court may, in very exceptional circumstances stay a suit under Section 151 of the CPC as the inherent jurisdiction of the court to make orders ex-debito justice is undoubtedly affirmed by Section 151 CPC. The said decision also discussed the ratio laid down in Manohar Lal Chopra v. Rai Bahadur Rai Raja Seth Hiralal reported in 1962 SC 527 wherein it was held that to pass orders under Section 151 for ends of justice or preventing abuse of the process of the Court, the court cannot however, over look the well settled principles of law governing the suits. In such cases also, there must be identity of subject matter and field of controversy between the parties in the two suits substantially though the identity contemplated and field of controversy need not be identical in every particular, or at least the court 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 of the subsequent suit. 4. Mr. Sahewalla further relies Rekha Barooah v. Jitendra Kumar Baruah reported in 2012 (1) GLT 438 wherein this Court held that power under Section 151 of the CPC can be exercised when the same is not in any conflict with what has been expressly provided in the Code or against the intention of the legislature. In the said decision, it was with regard to non invocation of Section 151 of the CPC by the trial court while deciding an application under Section 10 of the CPC. In the said decision the said application under Section 10 was rejected alongwith the finding of the court below that when Section 10 of the CPC does not have any application, the provision of section 151 of the CPC cannot be invoked so as to bypass the provision of Section 10 of the CPC. Relying the said ratio, Mr. Sahewalla submits that the learned court below ought to have allowed the said application under Section 10 of the CPC even by invoking the jurisdiction under Section 151 of the CPC. Having not done so, the impugned order is liable to be inferred. 5. Per contra, Mr. Dutta learned senior counsel submits that the suit for specific performance of contract is a regular suit and on the other hand the suit under the Rent Control Act cannot be termed to be falling within the definition of regular suit. It is under the provisions of the Rent Control Act and the trial conducted by the court is summary in nature. He submits that considering the difference of the genesis of the suit, the ambit and scope of Section 10 does not come into play in a suit under the Rent Control Act vis-à-vis a regular suit. In addition to the said submission, Mr. Dutta further submits that the issues involved in both the suits are totally different in nature. He submits that considering the difference of the genesis of the suit, the ambit and scope of Section 10 does not come into play in a suit under the Rent Control Act vis-à-vis a regular suit. In addition to the said submission, Mr. Dutta further submits that the issues involved in both the suits are totally different in nature. The suit for specific performance of contract is for the enforcement of the alleged agreement for sale purportedly entered by the present respondent as the seller with the petitioner. On the other hand, the subsequent suit filed by the respondent is on the strength of the relation of landlord and tenant between the parties to the suit and for ejectment of the tenant for violation of the terms of the tenancy agreement. In such situation, there cannot at all be any issues evolved between the parties to be decided by the court below which are similar to the one that had evolved in the suit for Specific Performance of Contract. Mr. Dutta relies on Radha Devi v. Deep Narayan Mandal & Ors. reported in 2003 11 SCC 759. In the said decision one of the respondents to the appeal filed a suit for declaration and partition with a specific declaration that the property of which they are tenants is a joint family property and as such they have 1/3rd share in it. Subsequent thereto in the eviction suit filed by the appellant for ejectment of respondents an application under Section 10 of the CPC for staying the proceedings in eviction suit till the disposal of the earlier suit for declaration was preferred by the respondents. The same was allowed thereby staying the proceeding of the eviction suit. A revision application was preferred before the High Court which was dismissed. Against the said dismissal, the appellants preferred the appeal by way of a special leave petition. The Hon'ble Apex court while setting aside the order for stay held that in suit such a Rent Court is not required to go into the serious question of title otherwise the purpose of the Act would stand frustrated. Mr. Dutta further relies Kshitish Chandra Bhowmick v. Harak Chand Betala & Ors. The Hon'ble Apex court while setting aside the order for stay held that in suit such a Rent Court is not required to go into the serious question of title otherwise the purpose of the Act would stand frustrated. Mr. Dutta further relies Kshitish Chandra Bhowmick v. Harak Chand Betala & Ors. reported in AIR 1985 Guwahati 55 where in it was held that Section 10 of the CPC in order to operate, the matter in issue in the two proceedings should be directly and substantially the same. Where the causes of action and the reliefs are different, it cannot be said that the matter in issue between the two suits is directly and substantially the same. Identity of one or two issues is not enough, rather it is to be seen whether the field of controversy is the same and whether the final decision in the previous suit would operate as res judicate in the subsequent suit. Similarly, Mr. Dutta further relies Shaw Wallace and Co. Ltd., v. Bholanath Mandanlal Sherawala & Ors. reported in AIR 1975 Calcutta 411 (1) and Dr. N.P. Tripathi v. Smt. Dayamanti Devi & Anr. reported in AIR 1988 Patna 123 which discussed the ambit and scope of Section 10 of the CPC. Drawing reference to the ratio of the said decisions, Mr. Dutta submits on examining the present case in hand following the touchstone the impugned order needs no interference at all. 6. Considered the submission of both the learned senior counsels. It is not in dispute that the earlier suit was for specific performance of contract of an agreement for sale purportedly executed by the present respondent, who in fact is the landlord and has preferred the subsequent suit. The subsequent eviction suit is under the Rent Control Act and the court below is confined with respect to the tenancy agreement if there be any violation of terms stipulated therein the tenancy agreement. If the court below finds that there are such violation on the part of the tenant then the court below is to decide the suit in favour of the landlord and if not, dismiss the same. The question of title is unknown to the said proceeding under the Rent Control Act. If the court below finds that there are such violation on the part of the tenant then the court below is to decide the suit in favour of the landlord and if not, dismiss the same. The question of title is unknown to the said proceeding under the Rent Control Act. Similarly, the suit for specific performance of contract confines to the agreement for sale and the court would see whether there is any default on the part of the seller (as the case in hand) and if the court finds there is any negligence on the part of the seller/vendor then the suit is to be decreed. The court while deciding the suit for Specific Performance of Contract has ample power to protect the purchaser including putting the purchaser in possession of the suit land. The issues in the said suit for Specific Performance of Contract as already mentioned, confines whether the agreement exists and whether there is any default on the part of the vendor. If the issues arising between the parties in both the suits are considered it is seen that there evolves no common issues to be decided by the courts below. Section 10 of the CPC stipulates that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially an issue in the previously instituted suit between the same parties or between the parties under whom they or any of them claimed litigating under the said title where the suit is pending in the same or any other court having jurisdiction to grant the relief claimed. 7. From the discussions so far the issues are concerned, it is seen that no issues evolved between the parties to the suit in either of the suits could be said to be common. In such situation, the requirement of Section 10 of the CPC are not found to be fulfilled in the present case in hand. Under such circumstances, whether this court has the jurisdiction to invoke Section 151 of the CPC for granting the stay of the subsequent suit. In such situation, the requirement of Section 10 of the CPC are not found to be fulfilled in the present case in hand. Under such circumstances, whether this court has the jurisdiction to invoke Section 151 of the CPC for granting the stay of the subsequent suit. In 2012 (1) GLT 438 (supra), this court held that the inherent power under Section 151 of the CPC could be exercised for stay of subsequent suit when the same is not in any conflict with what has been expressly provided in the Code of Civil Procedure, 1908 or against the intention of the legislature. To attract the provision of Section 10 of the CPC, the matter in issue must be directly and substantially an issue in a previously instituted suit between the same parties but, as discussed above, this court finds that the matter in both the suits are different and as such Section 151 of the CPC cannot be invoked for granting the stay. 8. Accordingly, this court finds that the revision petition is dismissed. The parties to the suit shall appear before the court on 27.11.2017. Interim order passed earlier stands vacated.