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Allahabad High Court · body

2017 DIGILAW 996 (ALL)

PADAM CHANDRA SAHU v. SUMAN SAHU

2017-04-13

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—The present petition has been filed challenging orders dated 4.5.2016 and 5.10.2016 passed by the Small Causes Court, Jhansi in S.C.C. Suit No. 45 of 2012 and Additional District Judge, Court No. 3, Jhansi in Civil Revision No. 14 of 2016 respectively. 2. By order dated 4.5.2016, the application 78 C of the defendant-petitioners to stay further proceeding of S.C.C. Suit No. 45 of 2012 in exercise of power under Sections 10 and 151 C.P.C., has been rejected whereas by order dated 5.10.2016, the revision preferred against the order dated 4.5.2016 has been dismissed. 3. The petitioners are defendants in S.C.C. Suit No. 45 of 2012 which was instituted by the plaintiff-respondent, based on landlord-tenant relationship, for arrears of rent and eviction. From the plaint of S.C.C. Suit No. 45 of 2012, which is on record as Annexure 1 to the petition, it appears that the suit was instituted on 26.7.2012. The plaintiff-respondent instituted S.C.C. Suit No. 45 of 2012 claiming ownership under sale-deed dated 9.10.1995 executed by Smt. Shanti Devi and Vinod Kumar Seth. It was claimed that the defendants had received knowledge of the sale-deed on 15.12.2010 in proceedings of Original Suit No. 272 of 2002 between Daya Shanker and Suman. From Annexure 1 to the supplementary-affidavit, which is copy of plaint of O.S. No. 620 of 2012, it appears that the defendant-petitioners had instituted Original Suit No. 620 of 2012 against plaintiff-respondents on 26.9.2012 for declaring the sale-deed dated 9.10.1995 void. Subsequently, in proceeding of S.C.C. Suit No. 45 of 2012, an application was moved by the defendant-petitioners for returning the plaint to a competent Court having jurisdiction to decide title of immovable property, under Section 23 of the Provincial Small Causes Court Act, which came to be rejected by order dated 3.7.2013 and against the said order a revision was filed which was also dismissed. Thereafter, application 78 C was filed by the defendant-petitioners for staying the proceeding of S.C.C. Suit No. 45 of 2012 on the ground that in case the sale-deed dated 9.10.1995 is canceled by a decree in Original Suit No. 620 of 2012, the plaintiff-respondents of the present suit would have no right to obtain a decree in the present suit, therefore, the present suit proceeding was liable to be stayed under Section 10 read with Section 151 C.P.C. The trial Court by the impugned order dated 4.5.2016 rejected the application by holding that a suit before the Judge Small Causes is a summary suit based on landlord-tenant relationship and as the suit on the original side was instituted after the institution of the summary suit, the proceedings of the summary suit cannot be stayed. The revisional Court affirmed the view taken by the trial Court by impugned order dated 5.10.2016. 4. I have heard Sri Kamlesh Kumar Tiwari for the petitioners and Smt. Rama Goel Bansal for the respondents. 5. Learned counsel for the petitioners submitted that the result of the small causes suit would depend on landlord-tenant relationship, which is dependent on the sale-deed dated 9.10.1995, the validity of which could be tested only in the Original Suit No. 620 of 2012, therefore the proceeding of S.C.C. Suit No. 45 of 2012 was liable to be stayed. 6. Smt. Rama Goel Bansal, who appeared on behalf of the plaintiff-respondent, submitted that the provisions of Section 10 of the Code of Civil Procedure, would not be applicable to the facts of the case inasmuch as the original suit No. 620 of 2012 was not a previous suit but a subsequent suit and, in any case, the suit before the Judge Small Causes is a summary suit based on landlord-tenant relationship and its decree does not bind the Court which has jurisdiction to decide question relating to title of immovable property therefore even if the summary suit is allowed to proceed, its decree would be subject to the decree passed in the original suit, accordingly, the fundamental principle on which subsequent suit proceeding is to be stayed would not be applicable to the facts of the present case. 7. I have given thoughtful consideration to the submissions of the learned counsel for the parties. 8. 7. I have given thoughtful consideration to the submissions of the learned counsel for the parties. 8. For applicability of the provisions of Section 10 of the Code of Civil Procedure, one of the essential conditions is that the suit of which the trial is to be stayed must be dealing with the matter in issue which is directly and substantially in issue in a ‘previously instituted suit’ between the parties, or between the parties under whom they or any of them claim litigating under the same title. The words ‘previously instituted suit’ are of significance. In the instant case, the present suit of which proceedings are sought to be stayed is not a subsequent suit, inasmuch as, the other suit, on pendency of which the present suit proceedings are sought to be stayed, has been instituted after the institution of the present suit therefore the provisions of Section 10 of the Code of Civil Procedure are not attracted. 9. The question therefore now remains is whether the proceeding of the present suit ought to be stayed in exercise of power under Section 151 C.P.C. Ordinarily, when a specific provision conferring power upon a Court to stay proceedings of a suit in a given set of circumstances is there in the Code, recourse to the inherent powers must not to be resorted to unless there are exceptional circumstances warranting exercise of general power to secure ends of justice or to prevent abuse of the process of the Court. Therefore, where the suit is not liable to be stayed under Section 10 of the Code of Civil Procedure, recourse to the inherent power available under Section 151 C.P.C. could be had only in exceptional circumstances and not otherwise. Whether those exceptional circumstances exist or not is to be determined on the facts of each case. However, one of the tests which can be applied to determine whether exceptional circumstances exist for exercise of inherent power is whether by non exercise of that power any irreparable loss would be caused to the party which has invoked the exercise of that power. 10. Coming to the facts of the present case, the plaintiff-respondents had instituted suit by claiming title through a sale-deed of the year 1995 which, according to the plaintiff’s case, created landlord-tenant relationship between the plaintiff and the defendant. 10. Coming to the facts of the present case, the plaintiff-respondents had instituted suit by claiming title through a sale-deed of the year 1995 which, according to the plaintiff’s case, created landlord-tenant relationship between the plaintiff and the defendant. The suit was instituted on the strength of such relationship for arrears of rent and eviction. The defendant-petitioners after the institution of the present suit filed a suit seeking declaration that the sale-deed was void. It is well-settled in law that the Court of Small Causes is a Court of limited jurisdiction and its judgment and decree based on landlord-tenant relationship is always subject to determination of title in a regular suit. Therefore, even if the summary suit before the Court of Small Causes is decreed, its decree will not cause irreparable loss to the judgment-debtor, because he would have a right to claim declaration of his title as well as consequential relief in the regular suit. Accordingly, this Court is of the view that the proceedings of the SCC Suit are not liable to be stayed in exercise of power under Section 151 C.P.C. 11. In view of the discussion made above, this Court finds no legal error in the orders passed by the Court below. The petition is dismissed.