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Jado Rai Vs. Onkar Prasad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 688 of 1972
Judge
Reported inAIR1975All413
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 151
AppellantJado Rai
RespondentOnkar Prasad
Appellant AdvocateN. Sahai and ;B. Dayal, Advs.
Respondent AdvocateH.S. Joshi, Adv.
Disposition Revision allowed
Excerpt:
civil - stay on suits - sections 10 and 151 of code of civil procedure, 1908 - section 10 not applicable for stay of suit as court in which first case had having no jurisdiction to hear second case - - court can stay proceedings under section 151 and await decision of other suit in another court. - - and they failed to consider the applicability of a section 151, civil p. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application forsetting aside the abatement is not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the..........the circumstances where section 10 is not applicable the court has an inherent power to stay the suit pending before him:1. j.t. republike v. runkta and sons, (air 1966 cal 382); 2. bhagwati prasad v. sudheswar singh, (atr 1954 pat 11); 3. bharat nidhi ltd. v. shadi lal, (air 1954 punj 114); 4. banshidhar v. laxmiprasad (air 1966ori 53). it is not necessary to refer to each and every one of the aforesaid cases. in my opinion, atr 1962 sc 527 is not capable of the interpretation which shri joshi has invited me to place upon it. looking to the facts of the said case it is obvious that the observations relied upon by shri joshi were made to emphasise that it was the indore court where the subsequent suit had been instituted which could stay the suit under section 10, civil p. c. in that.....
Judgment:
ORDER

M.P. Mehrotra, J.

1. This is the second revision. The courts below held, while deciding an issue framed thus in a pending suit 'whether the suit is liable to be stayed?' that the suit was not liable to be stayed. That was the finding of the trial court and the lower revisional court affirmed the said finding. In thesecond revision before me it is contended that the courts below have not properly construed the pleadings in the two suits in question and they were too much pre-occupied with the ingredients of Section 10, Civil P. C. and they failed to consider the applicability of a Section 151, Civil P. C. In my opinion, the courts below were right in holding that the suit in question could not be stayed under Section 10, Civil P. C. This conclusion can be arrived at on the simple and undisputed ground that the court where the earlier suit was filed did not have the jurisdiction to grant the-relief claimed in the subsequent suit. The first suit was filed in the court of the Munsif and the second suit was filed in the court of the District Judge. It is obvious that one of the basic ingredients of Section 10 has not been made out in the instant case, and, therefore, the suit could not be stayed under Section 10, Civil P. C. However, I agree with the learned counsel for the applicant that it was possible for the trial court to stay the suit under Section 151, Civil P. C. and the courts below have not properly considered the ingredients of Section 151, Civil P. C. Learned counsel for the opposite party, Shri H.S. Joshi, has contended before me that Section 10 is exhaustive of the situations in which the court can stay a suit and apart from the said provision it is not open to a court to act under Section 151, Civil P. C. to stay the proceedings in a suit. Learned counsel has placed his principal reliance on Manohar Lal v. Hira Lal, (AIR 1962 SC 527) where it was laid down :

'When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers of Section 151 is not justified. The provisions of Section 10 do not become inapplicable on a court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract.'

Apart from the said case he has placed reliance on four other cases which are as follows :

(1) Union of India v. Ram Charan, (AIR1964 SC 215);

(2) Arjun Singh v. Mohindra Kumar, (AIR 1964 SC 993);

(3) Ramkaran Das v. Bhagwan Das, (AIR1965 SC 1144);

(4) Khalli Panda v. Dharam Gouda, (AIR1967 Ori 172).

2. In AIR 1964 SC 215 it was laid down as under :

'The court is not to invoke its inherent powers under Section 151, Civil P. C. for the purposes of impleading the legal representatives of a deceased respondent, if the suit had abated on account of the appellant not taking appropriate steps within time to bring the legal representatives of the deceased party on the record and when its application forsetting aside the abatement is not allowed on account of its failure to satisfy the court that there was sufficient cause for not impleading the legal representatives of the deceased in time and for not applying for the setting aside of the abatement within time.'

3. In AIR 1964 SC 993 the Court laid down :

'Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance of the defendant at the hearing of a suit has been provided for and Order 9, Rule 7 and Order 9, Rule 13 between them exhaust the whole gamut of situations that might arise during the course of the trial.'

And on the said finding the court further observed :

'The inherent power of the court cannot override the express provisions of the Law. In other words, if there are express 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. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the provisions that it makes for covering the contingencies to which it relates :

4. In AIR 1965 SC 1144 it was laid down as under :

'The inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. Rule 4 of Order 37 expressly gives power to a Court to set aside a decree passed under the provisions of that order. Express provision is thus made for setting aside a decree passed under Order 37 and hence if a case does not come within the provisions of that rule, there is no scope of resort to Sectirn 151 for setting aside such a decree.'

5. In AIR 1967 Ori 172 it was laid down as under :

'A money suit by a landlord against the tenant for arrear of rent for a certain period cannot be stayed under the provisions of Sections 10 and 151, Civil P. C, pending disposal of the tenant's application before the House Rent Controller under Sections 5 and 8 of Orissa House Rent Control Act for fixation of fair rent. It is so for the reasons that the proceeding before the Rent Controller is not a 'suit' and the subject-matter of inquiry in the two proceedings is not the same.'

6. On the other hand, the learned counsel for the applicant has placed reliance on the following cases which undoubtedly support his contention that in the circumstances where Section 10 is not applicable the Court has an inherent power to stay the suit pending before him:

1. J.T. Republike v. Runkta and Sons, (AIR 1966 Cal 382);

2. Bhagwati Prasad v. Sudheswar Singh, (ATR 1954 Pat 11);

3. Bharat Nidhi Ltd. v. Shadi Lal, (AIR 1954 Punj 114);

4. Banshidhar v. Laxmiprasad (AIR 1966Ori 53).

It is not necessary to refer to each and every one of the aforesaid cases. In my opinion, ATR 1962 SC 527 is not capable of the interpretation which Shri Joshi has invited me to place upon it. Looking to the facts of the said case it is obvious that the observations relied upon by Shri Joshi were made to emphasise that it was the Indore Court where the subsequent suit had been instituted which could stay the suit under Section 10, Civil P. C. In that situation the Supreme Court laid down that it was wrong on the part of the Asansol court where the earlier suit had been instituted to stay the suit pending before it under Section 151, Civil P. C. In the said background those observations were made. It is obvious that if the subsequent suit deserves to be stayed under Section 10 Civil P. C. then it would not be right for the court where the earlier suit is pending to stay the earlier suit purporting to exercise the inherent powers of the Court. Such a stay will almost lead to a nullification of the provisions of Section 10, Civil P. C. But the Supreme Court's observation cannot be interpreted to lay down that where the ingredients of Section 10 are not made out then a court has no jurisdiction to stay a suit pending before it. It is important that even the observations relied upon did not lay down that the Asansol court had no jurisdiction to stay the suit. The Court merely observed that it was not justified for the Asansol Court to slay the suit when the subsequent suit was liable to be stayed under Section 10. The question of justification is not a question of jurisdiction. The Supreme Court in the said case clearly held that the Indore Court where the subsequent suit had been filed had the jurisdiction to issue an interim injunction restraining the defendant in the said court from proceeding with his Asansol suit. The Supreme Court held that the provisions of Order 39 were not exhaustive of the circumstances in which injunction could be issued and the court had inherent power to issue injunction apart from the provisions of Order 39 Rules 1 and 2. On merits however, the Supreme Court held that it was very wrong of the Indore Court to have restrained the defendants in the said court from proceeding with their earlier suit filed in the Asansol court. In my opinion, the Supreme Court has laid down that the court in which the subsequent suit has been instituted can bring about a stay of the earlier suit pending in another court by issuing an injunction to the party concerned. Then it is not possible to contend that the court itself where the earlier suit is pending has notthe jurisdiction to stay the suit pending before it under Section 151. In my opinion, whether it be an earlier suit or whether it be the latter suit, every court where a suit is pending, has an inherent jurisdiction to stay the proceedings pending before it. But it is obvious that where the ingredients of Section 10 are applicable and the subsequent is liable to be stayed under the said provision the court where the earlier suit is pending would not be justified in staying the earlier suit acting under Section 151, Civil P. C. In my opinion, that is the ratio deducible from the aforesaid observations extracted from the said pronouncement of the Supreme Court reported in AIR 1962 SC 527. The other Supreme Court cases relied upon by Shri Joshi are not of much assistance inasmuch as the court in the said cases was not called upon to consider the provisions of Section 151 in conjunction with Section 10, Civil P. C. In my opinion, the Orissa case is also not of real assistance. I, therefore, hold that in a situation where Section 10 is not applicable the court in which a suit is pending has a jurisdiction to stay the proceedings and to await the decision in another suit pending in a different court. Of course, the court before staying the suit pending before it in the exercise of its powers under Section 151 would take into consideration various aspects of the matter e. g. convenience of the parties, the implication and the effect of the judgment, in the other suit upon the controversies involved in the suit pending before the court which chooses to stay its proceeding. It is not possible to exhaust those aspects and circumstances nor is it desirable to do so. In the instant case, I feel that the court below should have considered the pleadings of the parties in both the suits with greater care and should have then decided whether it would be desirable for the subsequent suit to be stayed under Section 151, Civil P. C. This matter is entirely in the discretion of the trial court and it is not desirable that there should be any expression of views by this Court in the matter.

7. The revision is allowed and the orders of the courts below are set aside and the trial court is directed to decide the issue in the light of the observations made above and in accordance with law. In the circumstances of the case, I make no order as to costs. I direct that the record of the court below be sent down immediately.


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