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Mohan Chandra Deka Vs. Smt. Himani Talukdar - Court Judgment

LegalCrystal Citation
Subject;Civil
CourtGuwahati High Court
Decided On
Case NumberCivil Revn. No. 76 of 1981
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 151
AppellantMohan Chandra Deka
RespondentSmt. Himani Talukdar
Appellant AdvocateB. Sarma, Y.K. Phukan and A.C. Sarma, Advs.
Respondent AdvocateS.K. Sen and A.R. Pal Mazumdar, Advs.
DispositionPetition dismissed
Excerpt:
.....terms, the court may, in very exceptional circumstances, stay a suit under section 151 as the inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by section 151 c. relying on air 1962 sc 527, (1978) 1 all er 625 (630) :(1978) ac795 (812) (hl) the court has held that in cases where court has to pass orders under section 151 for ends of justice or preventing abuse of the process of the court, the court cannot, however, overlook the well settled principles of law governing the stay of suits. in such cases also, there must be identity of the 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..........air 1972 andh pra 186 it has been held that unless the two suits are pending in courts of concurrent jurisdiction, section 10 is not attracted. in shri harikanta singh v. mustt. khodeja khatoon, civil revn. no. 224 of 1975 decided on 16-2-78. hon'ble m. sadanandaswamy, c. j. sitting singly took the view that as the court in which the earlier suit was pending had no jurisdiction to try the later suit, one of the conditions requisite under section 10 c.p.c. was absent and therefore the impugned order could not have been passed by the lower court under section 10. there the later title suit no. 22 of 1969 was pending in the court of the assistant district judge no. 1, gauhati for declaration of title to the suit land and structures standing thereon. the earlier title suit no. 8/63 for.....
Judgment:

K.N. Saikia, J.

1. This civil revision impugns the order dt. 4-2-81 passed-in Money Suit No. 17 of 1979 allowing a petition under Section 10/151 C.P.C. and staying hearing of the suit till disposal of Money Suit No. 79/77.

2. Title Suit No. 17 of 1979, renumbered on transfer as Money Suit No. 33/80, now pending in the Court of the Assistant District Judge No. 2, Gauhati was instituted by the present petitioner against the present opposite party on 22-1-79 for recovery of hire charge of furniture etc. amounting to Rs. 13,500.00 alleging that the opposite party had purchased a printing press from the petitioner and failing to remove it forthwith agreed to pay at the rate of Rs. 300.00 per mensem as hire charge for the room and accessories so long as she could not remove the same, but defaulted in payment That suit is contested by the opposite party stating that she had already instituted Title Suit No. 79/77.

3. The present opposite party filed Title Suit No. 79/77 against the present petitioner and his father (Shri Golap Chandra Deka) for declaration of her tenancy right in the press room and for injunction restraining closure of the door of the room.

4. It would be seen that the house is of Golap Chandra Deka and in one room of that house petitioner's press remained installed. That press had been sold by the present petitioner to the present opposite party who had not removed the press forthwith and agreed to pay hire charge of Rs. 300/- per month. Subsequently one door of the room was closed down obstructing entry of the opposite party to her press room and she filed T. S. No. 79/77 for declaration and injunction as stated above. Subsequently the present petitioner filed T. S. 17/79 claiming the hire charges.

5. The present opposite party, as

defendant, filed a petition in the Money Suit No. 33/77 stating, inter alia, that as she already filed T. S. No. 79/77 on 14-9-77in the Court of the Sadar Munsiff, Gauhati against the present petitioner and his father, Golap Chandra Deka for declaration and injunction alleging that she purchased Prova Printing Press by paying Rs. 13,500/- and a document was executed stipulating that the press renamed as Uttam Press would be run in the same house by the purchaser as tenant under the present petitioner, but Golap Chandra Deka threatened her employees and asked them to quit and vacate the premises and blocked the front door of the press room thus preventing running of the press, and hence hearing of the Money Suit No. 33/80 be stayed pending disposal of T. S. No. 79/77. It was urged that both in T. S. 79/77 and in Money Suit No. 33/80 what was directly and substantially in issue was as to whether the purchaser (present opposite party) was or was not a tenant under the seller (present petitioner) and the later suit need, therefore, be stayed. The petition was resisted by the present petitioner contending that the subject matter of the two suits were not even remotely connected.

6. The impugned order staying hearing of Money Suit No. 33/80 was passed mainly on the grounds that from the plaints and the written statements of both the suits the Court came to the conclusion that the subject directly and substantially in issue in both the suits was the same because if the present opposite party succeeded in Title Suit 79/77 and got a declaration that she was a tenant of the present petitioner in respect of the house along with the furniture etc. that would non-suit the money suit for hire charges. The contention that as no issue were yet framed in the title suit no such conclusion could be drawn was rejected, relying on the rulings in AIR 1971 Cal 345 and AIR 1975 Punj & Har 71 (FB).

7. Mr. B. Sarma, the learned counsel for the petitioner submits that under Section 10 C.P.C, one of the conditions for stay of the subsequent suit is that the previously instituted suit should have been pending in the same or any other Court in India having jurisdiction to grant the relief claimed in the subsequently instituted suit; and as in this case this condition is not satisfied, the impugned order could not be passed under Section 10 or Section 151 C.P.C.; and as it affects jurisdiction of the Court, the order is

liable to be set aside in this petition under Section 116 of the C.P.C

8. Mr. A. R. Paul Mazumdar, the learned counsel for the opposite party, on the other hand, contends that the impugned order could be passed in exercise of inherent powers under Section 151 of the C.P.C. and as such it is not liable to be interfered with in revision.

9. Section 10 of the C.P.C. reads as follows :

'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 litigating 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.'

10. It would be seen that apart from the

requirements of the matter in issue directly and substantially being the same in both the suits, the previously instituted suit should be pending in the same or any other Court in India having jurisdiction to grant the relief claimed. The instant money suit No. 33/80 is pending in the Court of the Assistant District Judge No. 2 and its valuation is Rs. 13,500/-while the previously instituted Title Suit No. 79/77 is pending in the Court of Munsiff. Could the Munsiff have granted the relief claimed in the money suit hearing of which has been stayed under Section 10 C.P.C.? Mr. Sarma's submission is that the Munsiff could not have even entertained this suit his pecuniary jurisdiction being only up to Rs. 10,000/- (ten thousand). Does entertainment of a suit mean the same thing as 'having jurisdiction to grant the relief claimed'? The relief of recovery of hire charges up to Rs. 10,000/- could have surely been granted by the Munisiff. When the claim was for Rs. 13,500/- would it necessarily result in a decree of that amount only and not less than that. If the expression jurisdiction to grant the relief claimed for is interpreted as

jurisdiction to entertain the suit, then it would be possible to avoid operation of Section 10 C.P.C. by simply raising the amount beyond the pecuniary jurisdiction of the Court of the previously instituted suit. The word 'pecuniary' is not mentioned in Section 10.

11. In Somasundram v. Venkata Subhayya, AIR 1938 Mad 602 and Nanu Singh v. Muni Nath, AIR 1954 Pat 314 it has been held that the Court in which the previously instituted suit is pending must be competent to grant reliefs claimed in both the suits. In Sankhlal Industries v. Hiralal AIR 1973 Raj 306 and Brijlal & Co. v. M. P. E Board, AIR 1975 Cal 69 the view taken is that if the Court in which the suit previously instituted is pending is incompetent to grant the relief claimed in the subsequent suit, the previously instituted suit cannot be stayed under Section 10. In Radha Govinda v. G. R. Oil Mills (1970) 1 Cut WR 402 it has clearly been held that where the valuation of the subsequent suit exceeds the pecuniary jurisdiction of the Court in which the previous suit is pending, Section 10 will not apply. So also in M Subbaramayya v. B. N. Swamy, AIR 1972 Andh Pra 186 it has been held that unless the two suits are pending in Courts of concurrent jurisdiction, Section 10 is not attracted. In Shri Harikanta Singh v. Mustt. Khodeja Khatoon, Civil Revn. No. 224 of 1975 decided on 16-2-78. Hon'ble M. Sadanandaswamy, C. J. sitting singly took the view that as the Court in which the earlier suit was pending had no jurisdiction to try the later suit, one of the conditions requisite under Section 10 C.P.C. was absent and therefore the impugned order could not have been passed by the lower Court under Section 10. There the later Title Suit No. 22 of 1969 was pending in the Court of the Assistant District Judge No. 1, Gauhati for declaration of title to the suit land and structures standing thereon. The earlier Title Suit No. 8/63 for eviction from the premises and arrears of rent on transfer to the Court of the 2nd Munsiff was re-numbered as Title Suit No. 51/72. The lower Court in the later suit on an application under Section 10/151 C.P.C. held that the later suit became infructuous and that even if Section 10 C.P.C. was not applicable, the later suit could be stayed under Section 151 C.P.C. and this order was set aside in revision.

12. In view of the above decisions it can be said to be well settled that for applying Section 10 C.P.C. the Court in which the previously

instituted suit is pending must have jurisdiction to grant the relief prayed in the later suit. On the above principle the impugned order in the instant case would not be sustainable. However, in Sriniwas v. Jayaram (1969) 35 Cut LT 572 where the first suit was for settlement of accounts and the second suit was a money suit, the Orissa High Court took the view that the second suit could be stayed irrespective of the fact that the valuation of the second suit exceeded the pecuniary jurisdiction of the Court in which the first suit was pending.

13. The next question is as to whether the lower Court could invoke its inherent powers under Section 151 C.P.C. and stay the suit even though it could not do so under Section 10 C.P.C. In Harikanta Singh (supra) in support of the contention that it could, reliance was placed on Manohar Lal v. Seth Hiralal, AIR 1962 SC 527 where it has been held that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 C.P.C. inasmuch as Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In Union of India v. Ram Charan, AIR 1964 SC 215 it was held that the Court was not to invoke its inherent powers under Section 151 C.P.C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated. In Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993 it has been held that if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter, the inherent power of the Court cannot be invoked in order to cut across the powers conferred by the Code. In Ramkarandas v. Bhagwandas, AIR 1965 SC 1144 Manoharlal (supra) was followed observing that the inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure. In Ram Chand and Sons Sugar Mills v. Kanhayalal, AIR 1966 SC 1899, while discussing the scope of the inherent powers under Section 151 C.P.C., after considering the earlier decisions in Padam Sen v. State of Uttar Pradesh, AIR 1961 SC 218, Manoharlal (supra), and Arjun Singh (supra), the scope of the inherent power was defined thus : 'The

inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. But that power 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 express 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. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code, to make a suitable order to prevent the abuse of the process of the Court'.

It has accordingly been held that the provisions of Section 10 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 C.P.C. for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified

14. The hands off attitude of the High Court in revision would not, however, be justified where interference is necessary for the ends of justice. In P.V. Shetty v. B. S. Giridhar, AIR 1982 SC 83 : (1982) 3 SCC 403, the appellant claiming to be a tenant on a monthly rent of Rs. 650/- filed an application before the Rent Controller for fixation of fair rent. The accepted position was that the appellant would be entitled to the protection of the Karnataka Rent Control Act only if fair rent was fixed at Rs. 500/- or below per month

and if other ingredients of expression 'tenant' were satisfied. The respondent-landlord thereafter filed a suit for eviction on the ground that tenancy of the appellant was determined and he was not entitled to protection of the Rent Act. The appellant moved an application for an interim stay of further proceedings in the suit till the disposal of the application pending before the Rent Controller. This application for the stay was rejected arid a revision petition to the High Court also failed. It was held that although the Supreme Court is most reluctant to interfere with the

procedural wrangle and that too at an interlocutory stage, it interferes when, non-interference may cause irreparable injustice to the concerned party. If the stay is not granted

and the suit proceeds and results in eviction,

the application for fixation of fair rent which

preceded the filing of the suit, becomes

infructuous. On the other hand, if the

application for fixation of fair rent is allowed

holding that the appellant is a tenant as

understood under the Rent Act, and the fair

rent is Rs. 500/- or less per month he would be

entitled to the protection of the Rent Act

which determination may be raised in suit.

Therefore, the just and fair approach,

balancing the equities would be to stay further

hearing of the suit till the application for

fixation of fair rent is decided. In Oil & Natural

Gas Commission v. Ganesh Prasad Singh, AIR

1983 Gauh 8 a Division Bench of this Court

held that in cases not covered by the provisions

of Section 10 C.P.C. in terms, the Court may, in

very exceptional circumstances, stay a suit

under Section 151 as the inherent jurisdiction of the

Court to make orders ex debito justitiae is

undoubtedly affirmed by Section 151 C.P.C. Relying

on AIR 1962 SC 527, (1978) 1 All ER 625

(630) : (1978) AC795 (812) (HL) the Court has

held that in cases where Court has to pass

orders under Section 151 for ends of justice or

preventing abuse of the process of the Court,

the Court cannot, however, overlook the well

settled principles of law governing the stay of

suits. In such cases also, there must be identity

of the 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 in the subsequent,

suit. It has further been held that in the exercise

of power under Section 151 C.P.C. to stay a suit, the

Court has to keep in view the statements of

law on the stay of a suit which are well settled,

as the Court acts upon the assumption of the

possession of the inherent power to act ex

debito justitiae and to do that real and

substantial justice for the administration of

which alone it exists. An error in law which is

vital in the subject-matter of dispute between

the parties and which entails absence of

jurisdiction, justifies interference by the High

Court in exercise of revisional power under

Section 115 C.P.C, and indeed, in such a case

revisional power has to be exercised by the

High Court, to prevent a miscarriage of justice.

In a recent decision in Challapalli Sugars Ltd.

v. Swadeshi Sugar Supply Pvt. Ltd, AIR 1983

Cal 199, where the subject-matter in controversy between the two suits was the same, but the relief prayed based on different causes of action, the Division Bench of the Calcutta High Court held that the later suit should be stayed.

15. To apply the above principles, it would be seen that in the instant case both the suits arise out of the same transaction, namely, sale and purchase of the press and the alleged agreement to allow the press to be run in the same room where it earlier was at a hire charge of Rs. 300/- per month. One aspect of this agreement is the tenancy and the other aspect is the hire charge. Unless the question whether there was a tenancy or not was decided the question of recovery of hire charge could not reasonably be decided. On the other hand if the subsequent suit for hire charge is proceeded with and decreed, the previously instituted suit for declaration of tenancy would be rendered infructuous. In the event of that suit being decreed and the present opposite party being declared a tenant the question of her rights as tenant and the question of rent would be relevant. Under such circumstances the subsequent money suit for hire charges ought to be stayed pending disposal of the previously instituted title suit for declaration of tenancy and injunction. This could not be done under S 10 on the ground of pecuniary jurisdiction. That section would not apply. Under the facts; and circumstances of the case it could be done only under Section 151 C.P.C for the ends of justice. When the Assistant District Judge has so stayed no infirmity can, therefore, be found in the impugned order. Section 10 having not been applicable it cannot be said to have been violated,

16. In the result, this revision petition is dismissed, but without costs. The Rule is discharged.


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