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Minocher Behramji Damanial Vs. Hema N. Dadachanji and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 549 of 1979
Judge
Reported inAIR1982Bom151; 1983(2)BomCR218; 1981MhLJ783
ActsCode of Civil Procedure (CPC), 1908 - Sections 10 and 151; Bombay Rent Act, 1882
AppellantMinocher Behramji Damanial
RespondentHema N. Dadachanji and ors.
Appellant AdvocateS.N. Variava, Adv., i/b., D.J. Kamdin & Co.
Respondent AdvocateS.H. Kapadia and;F.D. Damani, Advs.
Excerpt:
.....mean that the inherent powers are not in any was controlled by the provisions of the code as has been specifically stated in s. 10 exist will clearly be contrary to the intention of the legislature. 151, it is well known that the suits take several years in both, city civil court, small cause court even to reach hearing. the only intention of the defendant appears to be to delay the determination of the question of the respective rights of the parties and in the meantime to continue to enjoy possession......an application was made by the present plaintiff for possession which was decided by the city civil court by a judgment and order dt 8-3-1972. the relevant portion of the said order and judgment reads as follows:-'though the applicant the established his title and right to possession to the exclusion of the plaintiffs and the defendant, it is not possible to direct the pendant, it is not possible to direct the court receiver to deliver possession to the applicant because he in fact took possession from the defendant who was carrying on business as applicant's licensee. however, the defendant does not dispute that he is a licensee. he undertakes to return possession to the applicant after he receives it from the court receiver. the court receiver shall deliver possession to the.....
Judgment:
ORDER

1. This revision application arises out of a judgment in the City Civil Court Suit No. 583 of 1975 dt 16-3-1979 staying the said suit under the provisions of S. 10 of the Civil P. C. This stay was granted not on any notice of motion taken out as is usually done but was granted after framing a preliminary issue at the hearing of the suit as to whether the suit should be stayed under the provisions of S. 10 of the Civil P. C. As I am deciding the application on merits I do not propose to go into the question whether such a stay can be granted without a separate application. I must also point out that there is no pleading and so no issue framed as no pleading and so no issue framed as to whether the stay should be granted in exercise of the inherent powers under S. 151 of the Civil P. C. However, as this point has been argued in detail by both sides and without any objection on behalf of the plaintiff as to want of pleadings or issue I will deal with this point also.

2. Sometime in the year 1939 the plaintiff had given to the defendant its business of vulcanizing battery charging carried on in the name and style of 'Kingsway Garage' in Shop No. 2 on the ground floor of a building which was then known as 'Kingsway Chambers' and now known as 'Kalayan Bhavan' situate at King's Circle on what is described as conducting basis under a written agreement. The agreement between the parties was renewed from time to time by written agreements, the last of such agreements being dt/. 1-4-1970. It would appeal that there was litigation between the present defendant as defendant and Shashikant N. Shah and another as plaintiffs beings. C. Suit No. 56 of 1972 in which a court receiver was appointed. An application was made by the present plaintiff for possession which was decided by the City Civil Court by a judgment and order dt 8-3-1972. The relevant portion of the said order and judgment reads as follows:-

'Though the applicant the established his title and right to possession to the exclusion of the plaintiffs and the defendant, it is not possible to direct the pendant, it is not possible to direct the Court receiver to deliver possession to the applicant because he in fact took possession from the defendant who was carrying on business as applicant's licensee. However, the defendant does not dispute that he is a licensee. He undertakes to return possession to the applicant after he receives it from the Court Receiver. The Court receiver shall deliver possession to the defendant from whom he had taken it. He shall thereafter stand discharged without passing accounts. In view of this. I make no order on the applicants notice of motion dt. 29-2-1972. No order as to costs on the applicant's Notice of Motion and the Notice of Motion of the plaintiffs Court Receiver to act on certified copy of Roznama.'

I am unable to follow why an order for direct possession in favour of the applicant could not have been made when the defendant was consenting to it. I am not aware of any law which prevents the Court from making such an order. This question, however, does not arise in the present case.

3. There is dispute between the parties hereto as to when the defendant delivered possession to the plaintiff in accordance with the said order. The plaintiff contends that it was delivered late, after a lapse of almost a period of about one year and thereafter the defendant took wrongful possession there of. The defendant contends that it was delivered within one month from the date of the order and the premises were given back by the plaintiff to the defendant again under an oral agreement After this the present defendant filed a suit in the Small Cause Court at Bombay being R. A. Declaratory Suit. No. 1946 of 1973 for a declaration that he was a tenant of the premises and an interim order was sought under which a notice was served on the plaintiff here in. The Small Cause Court suit was dismissed sometimes in Nov., 1974 for default of appearance of the defendant, he being the plaintiff in that suit. The plaintiff then filed the present City Civil the Small Cause Court suit restored on 2-6-1975 and the writ of summons was served on the plaintiff on or about 25-6-1975. Even after such restoration the defendant again remained absent and the notice for interim order came up for hearing on 7-9-1975 and was dismissed. In the meantime the plaintiff had applied for appointment of receiver and by an order dt 8-7-1975 the City Civil Court appointed the Court Receiver as receiver of the business. An appeal was filed against that order in this Court Receiver as receiver of the business. An appeal was filed against that order in this Court. On 20-4-1978 by consent of parties a workable arrangement was arrived at as a result of which an order was passed by this Court confirming the appointment of receiver and directing that the Court Receiver should continue and the Court directed the trial Court to dispose of the suit expeditiously. It is further clarified that the arrangement was arrived at without prejudice to the contentions of the defendant that the City Civil Court had not jurisdiction to entertain and by the suit.

4. It is after this that the suit reached hearing before the City Civil Court and the present order came to be passed on the preliminary issue as aforesaid,

5. Mr. Variava for the petitioner contends that this order is wrongly passed as on a true construction of S. 10 of the Civil P. C. One of the requirements for passing such an order is that previously instituted suit must be pending in the same are in the other Court in India having jurisdiction to grant the relief claimed in the subsequent suit. Mr. Variava does not dispute that the subject matter of both the suit i.e. the city Civil Court suit and the Small Cause Court suit are the same, but he contends that the Small Cause Court has no jurisdiction to grant the reliefs claimed in the City Civil Court suit. The said reliefs are that it may be declared that the defendants are trespassers in the suit premises as also in respect of the goodwill, tenancy rights and the assets lying in the said premises, for possession on the ground of the defendants being trespassers and for injunction restraining the defendants from interfering with the plaintiff's possession and also as the total value of the subject matter of this suit is over Rs. 15,000

6. In my view the contention of Mr. Variava that it is not enough that there is substantial identity of the subject matter of the suit but that the Court in earlier suit should have jurisdiction to grant the reliefs claimed in the later suit is correct. It is also clear that the Small Cause Court has no jurisdiction to grant the reliefs which are claimed in the City Civil Court suit, under the Presidency Small Cause Courts Act, 1882 of the Bombay Rent Act. In the Small Cause Courts Act amendments were carried out in 1976 which are not relevant as both the suits were filed before the said amendments, By virtue of S. 19 of the Small Cause Courts Act 1882 the Small Cause Courts had no jurisdiction in the Suit for the recovery of immovable property. Suits to obtain an injunction and suits for the recovery of immovable property, suits for declamatory decrees. Small Cause Court has, however, jurisdiction to entertain the suits between the landlord and tenants by virtue of the provisions of the Rent Act and also to decide whether the relationship between the landlord and the tenant existed by virtue of S. 39 of the said Act. However, it is clear that the question of jurisdiction under this Special Act can be assumed only when the suit as filed was on the face of it between landlord and tenant. Once the Small Cause Court came to the conclusion that such a relationship did not exist, admittedly it cannot further decide as to what the relationship between the parties was it is therefore, clear that the Small Cause Court does not have jurisdiction to grant relates prayed for in the present suit, the plaintiff where in clearly denies any existence of the relationship of landlord and tenant.

7. In support of his contention Mr. Variava has relied on In the Goods of Mrs. Lilian Singh : AIR1943Cal19 . Manu Singh v. Muni Nath Singh, : AIR1954Pat314 ; B. B. Chit Fund v. Ganpat Rai, : AIR1973Delhi122 , Channabasappa v. Kishnan Chand AIR 1972 Mys 112, As I have independently taken the same view I need not discus these decisions.

8. Mr. Kapadia for the respondents has strenuously opposed the contentions of Mr. Variava. Mr. Kapadia contends that the principle applicable is that if the decision in the previously instituted suit would become res judicata in the subsequent suit, the provisions of S. 10 are automatically attracted and that the stay must be granted by the Court. He further contends that even when the decision may not be res judicata under S. 11 of the Civil P. C., but can be considered as res judicata by reason of principles analogous to these under S. 11 of the Civil P. C. The provisions of S. 10 will be attracted. He then contends that even is S. 10 of the Civil P. C. Does not apply, the Court has inherent jurisdiction to grant such stay under S. 151 of the Civil P. C. And that in the present case this stay should be granted in exercise of such a power in the interest of justice.

9. Mr. Kapadia has strongly relied on the decision in J. H. Iron Mart v. Tulsiram. : AIR1953Bom117 , in that case it is held, inter alia, as follows (at p. 119):

** ** **

'..................Apart from any authority, turning to the section itself, it will be clear that S. 10 does not contemplate an identity of issues between the two suits, not does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same , and proper effect must be given to the language used by the Legislature in S. 10 that the identity required is a substantial identity. It is ture, as the authorities have laid down, that there must be an identity of the subject matter. It is equally true that the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the field of controversy contemplated should not be identical add the same in every particular, but the identity and the held of controversy must be substantially the same.'

** ** **

'Therefore, the principle underlying S. 10 seems to be that the policy of the legislature is opposed to two Courts with parallel jurisdiction proceeding simultaneously with tow suits when there is a possibility of the two Courts coming to different conclusions and thereby resulting in conflict of decisions. If that policy underlying S. 10 is kept in mind, then it would be easier to come to a decision with regard to different cases that arise for decision.'

The Court also quoted with approval a portion of another judgment of this Court in Trikamdas Jethabhai v. Shivraj Kalyanji : AIR1942Bom314 which inter alia, says (p. 702);

'If in the earlier suit that issue is decided against the plaintiffs to the Bombay suit it will operate as 'res judicata' and the Bombay suit if not earlier determined will necessarily fail. In my opinion it is immaterial that the relief claimed to the earlier suit is of a different character from the relief claimed in the present suit. The real question is whether the matter in issue in the Bombay suit is directly and substantially in issue in the earlier suit.'

10. This case, if cursorily read, does tend to give an impression that once the Court comes to the conclusion that the decision in the earlier instituted suit if decided earlier will become res judicata in the subsequent suit of that there is likelihood of conflicting decisions by two Courts, the provisions of S. 10 are attracted. However, the decision in the case has to be viewed in the light of the points canvassed. The only point canvassed in that case was regarding the meaning of subject matter in issue, and the whole controversy turned around the interpretation of that portion of s. 10 It was not canvassed at any time that by reason of later portion of S. 10 the Civil P. C. Saying that the Court in which earlier suit was filed must have jurisdiction to grant relates claimed in the subsequent suit did not arise and an was not considered. Indeed such a contention could not have been taken in that case as the earlier suit was filed in Calcutta High Court and the subsequent suit was filed in Bombay High Court and though the relieves were different in both the suits the Calcutta Court having the same jurisdiction as the Bombay High Court under similar Letter Patent it was not possible to contend that Calcutta High Court had no jurisdiction to grant relieves claimed in the Bombay suit. It is for this reason that this contention was not taken up in that matter. The effect of this decision therefore is that while considering the identity of the subject matter in issue the Court must ear in mind the provisions of S. 11 of the Civil P. C. And that the two Courts with parallel jurisdiction proceeding simultaneously should not arrive at two conflicting decisions, If the stay was to be granted on this principle even though the earlier Court and no jurisdiction to grant relieves claimed in the subsequent suit it will have the effect of rendering subsequent portion of S. 10 completely otiose and such an interpretation is not permitted. It should also be noted that one of the principles laid down requires that the two Courts should have parallel jurisdiction and in the present case the two Courts do not have parallel jurisdiction but exclusive jurisdiction. In my view, therefore, this decision does not contain anything contrary to what I have held.

11. It must be further noted that in the judgment cited by Mr. Kapadia the effect of a decision in the Calcutta suit would be that all the material issues in Bombay suit would become res judicata and only question that would remain thereafter for the Bombay High Court would be the granting of suitable reliefs, if any. The question of giving any decision on merits would not have survived after the decision of the Calcutta High Court. This is evident from the said judgment when after observing (at p. 120).

'Whatever reliefs the plaintiffs may seek in the Calcutta suit and whatever may be the reliefs which the respondents may seek in the Bombay suit, these reliefs are incidental to the decision which the Court must come to as to what was the contract between the parties.'

It is observed as follows:

'...................If once the Calcutta High Court has held what the contract was between the parties and what the terms of the contract were, the Bombay suit would effectively be put an end to because that decision would bind the parties and all that will be required to be done would be to give the necessary ratites to the respondents in the Bombay suit if they have succeeded and these reliefs will flow from the decisions of the Calcutta High Court and will be consequential upon the deception of the Calcutta suit.'

The consequence of the decision of the Calcutta High Court was to put an effective and to the Bombay, whether the decision went one way or the other. As against this in the present case if the Small Cause court decides that the defendant was a tenant it will put an end to the suit in the Bombay City Civil Court however. If the decision goes the other way i.e. if it is held by the Small Cause Court that the defendant was not a tenant, the matter will still remain completely open in the city civil court, and the City Civil Court will still have to decide on evidence and merits as to whether the defendant has any right or not in respect of the business of the premises and reliefs, if any, to be given will be such as the Small Couse Court has no jurisdiction to grant.

12. Mr. Kapadia then relied on a decision in Laxman v. Rajaram, : AIR1979Bom305 . That decision does not deal with the effect of S. 11 of the Civil P. C. In construing S. 10 of Civil P. C. It only say that the general principle of res judicata are applicable even to the cases which are not specifically covered by the provisions of S. 11 of the Civil P. C. Mr. Kapadia then relied on Dhondi v. Dadoo AIR 1954 Bom 100, That case deals neither with Sec. 10 nor with Section 11 of the Civil P. C. That case arose under S. 85 of the Bombay Tenancy and Agricultural Lands Act before its amendment authorising the Civil Courts to refer the question to the Mamlatdar. Under that Act the only authority which has a power to decide whether the person is an agricultural tenant or not is the Mamlatdar and the jurisdiction of the Civil Courts to give such a decision is barred. A suit was filed in normal Civil Court under which such an issue arose. The question was whether in such circumstances the suit should be dismissed or stayed. In this context an order was passed for staying the suit and not dismissing the same. It was held that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss that suit straightway; the proper procedure to adopt in such cases would be to direct the party should raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. This case has no application in the context of the present case, It is clear that in this case even the City Civil Court had jurisdiction to decide, incidentally, as to whether the relationship between the plaintiff and the defendant is that of a landlord and tenant. The only consequence will be that if the relationship is as contended by the defendant, the City Civil Court will have to return the plaint for what of jurisdiction.

13. Mr. Kapadia then contends that even if S. 10 has no application the Court has jurisdiction under S. 151 of the Civil P. C. To grant such a relief. Mr. Kapadia seeks support from the aforesaid decision in Dhondi v. Dadoo AIR 1954 Bom 100. In my view this decision does not support Mr. Kapadia, The question that arose was not at all of stay of a suit under S. 10 of the Civil P. C. The question was a proper procedure to be followed when the plea of tenancy was taken P. Apart from that there is no reference to S. 151 nor is there any contention raised as to whether the provisions of S. 151 have any application. This case does not say that when S. 10 cannot apply stay can be granted under S. 151, Mr. Kapadia then relies on Gurudial Singh v. Auckland House School, , That judgment proceeded on an assumption that S. 151 applies, There nobody contended that S. 151, cannot apply if the matter is not covered by Section 10 of Civil P. C.

14. As against this Mr. Variava has drawn my attention to Manoharlal v, Seth Hiralal, : AIR1962SC527 . In that case a suit was filed by the appellant in 1946 in the Court of the Subordinate Judge at Asansol for recovery of Rs. 1,00,000 on account of share in the capital as well as in the assets of the partnership firm. Subsequent suit was filed by the respondent in the year 1949 in the Court of the District Judge. Indore, for a sum of Rs. 1,90,519-0-6 against the appellant and further interest on the footing of settled accounts and in the alternative for a direction ot the appellant to render true and full accounts of the partnership. An application was made of the Court at Asansol for the stay of that suit in exercise of its inherent powers which was rejected holding, inter alia, that there was no scope for acting under S. 151, Civil P. C., as S. 10 of the Code had no application to the suit, it having been instituted earlier than the suit at Indore. This order was confirmed by the Calcutta High Court. In these circumstances an application was made to the Indore Court for restraining the plaintiff from continuing the proceedings in the suit filed by him in the Court at Asansol on the ground that Asansol suit was vezatious. This interim injunction was granted by the District Court and an appeal preferred to the High Court of Judicature at Madhya Bharat was dismissed, holding that the order of injunction could be issued in the exercise of the inherent powers of the count under S. 151 of the Civil P. C. The plaintiff preferred an appeal to the Supreme Court from this dismissal of appeal. In this context a question arose as to whether the Court had inherent powers to grant injunction under S. 151 when S. 94 and O. 39 of the Civil P. C. Specifically provided for granting of injunctions. After considering various decisions it is observed in Para 21 of the judgment at page 533 as follows:-

'These observations clearly mean that the inherent powers are not in any was controlled by the provisions of the Code as has been specifically stated in S. 151 itself. But these powers are not to be exercised when their exercise may be in conflict with what had been expressly provided in the Code or against the intentions of the Legislature. This restriction, for practical purposes, on the exercise of these powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by the Legislature for orders in certain circumstances is dictated by the interests of justice.'

This principle definitely applies to the present case. What Mr. Kapadia canvasses for is the exercise o inherent powers in a field controlled by S. 10 of the Civil P. C. Which says that though the matter in issue is also directly and substantially in issue is also directly and substantially in issue in a previously instituted suit between the parties pending in the same or in any other Court in India having jurisdiction to grant the relief, stay can only be granted if the first Court has jurisdiction to grant reliefs claimed before the second court. The exercise of powers under S. 151 of Civil P. C. To grant stay when not all but only some of the conditions laid down in S. 10 exist will clearly be contrary to the intention of the Legislature. Applying the above dictum of the supreme court in Aminchand Pyarala v. Union of India : (1977)79BOMLR1 a specific question whether recourse can be had to S. 151 for staying a suit when the facts did not justify stay under S. 10 was answered in the negative. Not only am I bound by the said judgment but am in respectful agreement with the same.

15. Mr. Variava contends that even if I have powers under S. 151 to grant such stay the facts and circumstances of the cases are such that I should not grant the same. Mr. Kapadia contends to the contrary. Mr. Kapadia contends to the contrary. Mr. Kapadia says that if the plaintiff was carrying on business as trespasser since 1972 he ought not to have waited for a long period of three years to file the present suit went the defendant had already filed the suit in the Small Cause Court as early as in Apr., 1973. As against this Mr. Varlava points out the conduct of the defendants. In the small Cause Court suit a notice for interim injunction was issued sometime in April, 1973, The said notice was, however, not disposed notice was, however, not disposed of till Nov. 1974 when the said suit was dismissed for default of appearance. It would appear that the plaintiff came to know about the dismissal and filed the present suit in City Civil Court. In Bombay in July 1975, Mr. Variava informs me, and Mr. Kapadia does not deny that in the notice of motion taken out in this suit in the affidavit in support the plaintiff has stated that the Small Cause Court suit was so dismissed. Thereafter the Small Cause Court suit was got restored on 2-6-1975 by the defendant and the writ of a summons was served on the plaintiff on 25-6-1975. On 17-9-1975 the notice for and interim order came up for hearing in the Small cause Court and was discharged for default of appearance on the part of the defendant. In the meantime receiver was appointed in the present suit. The defendant preferred an appear from order appointing receiver and the consent order referred to above came to be passed. With the knowledge of the facts, the defendant consented to the expeditious hearing of the City Civil Court suit and when it reached hearing took up the contention of stay under S. 10 but not under S. 151, It is well known that the suits take several years in both, City Civil Court, Small Cause Court even to reach hearing. By virtue of the order of this Court the plaintiff got an opportunity to have his suit in the City Civil Court tried early. When the suit reached hearing early the defendant took the contention of stay after having agreed to the disposal of the suit by City Civil Court on merits subject to the preliminary contention regarding jurisdiction. The only intention regarding jurisdiction. The only intention of the defendant appears to be to delay the determination of the question of the respective rights of the parties and in the meantime to continue to enjoy possession. The attitude of the defendant regarding the Small Cause Court suit is also lack. In the circumstances even in I have a power to stay the suit under S. 151, Civil P. C. I would refuse to exercise the same in favour of this defendant.

16. In the circumstances. I make the rule absolute in terms of prayer (a) with no order as to costs and set aside the order dt 16-3-1979. I direct that the City Civil Court will proceed with the disposal of the suit as expeditiously as possible. I am sure that the City Civil Court will take into consideration the fact that this suit had reached hearing in 1979 and see that the suit is not delayed and retains its priority.

17. Rule made absolute.


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