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Banshidhar Naik and ors. Vs. Laxmiprasad Patnaik - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 136 of 1964
Judge
Reported inAIR1966Ori53
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 151
AppellantBanshidhar Naik and ors.
RespondentLaxmiprasad Patnaik
Advocates:D.P. Rath, Adv.
DispositionRevision allowed
Cases ReferredManohar Lal Chopra v. Seth Hiralal
Excerpt:
.....1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - it has also been laid down that the inherent powers are to be exercised by the court in very exceptional circumstances for which the code lays down no procedure. the learned munsif failed to exercise a jurisdiction vested in him on the misconception that section 151 of the code has no application in the facts and circumstances of this case......in the facts and circumstances of this case. the order of the learned trial court is liable to be quashed by the high court in exercise of its powers under section 115(1)(b) of the code.7. in the result, the order passed by the trial court refusing to stay the athgarh suit is quashed. title suit no. 18 of 1963 in the court of the munsif of athgarh is stayed till the disposal of title suit no. 155 of 1963 in the court of the subordinate judge of cuttack.8. the civil revision is allowed. as there is no appearance for the opposite party, there will he no order as to costs.
Judgment:
ORDER

G.K. Misra, J.

1. Bhubaneswar Patnaik has three sons, Laxmiprasad, Bishnuprasad and Debi-prasad. The latter two are minors. Laxmiprasad, as plaintiff, filed Title Suit No. 18 of 1963 in the court of the Munsif, Athgarh, (hereinafter referred to as Athgarh Suit), for declaration of title and recovery of possession on the allegation that the sale deed dated 21-6-1961 for Rs. 2000/- executed by him in favour of the petitioners who were the defendants in that suit, was without consideration and that passing of consideration being a condition precedent to the passing of title, no title passed under that registered sale deed.

The substantial defence taken by the petitioners (as defendants) was that on 21-6-61 two sale deeds were executed. One was executed by Laxmiprasad for Rs. 2000/- and the other was executed by the two minor sons through their mother guardian Binodini Debi for Rs. 7000/-. Both the sale deeds were not isolated and independent transactions but constituted one indivisible whole with a consideration of Rs. 9000/-. The entire transaction was negotiated through and settled by Bhubaneswar, who was the real owner of all the lands. Out of the total consideration of Rs. 9000/-. Rs. 7000/- was paid in cash and Rs. 2000/- was to be given a remission in favour of the petitioner No. 1, who was a Bhagchasi in respect of all the lands covered by both the sale deeds. Petitioner No. 1 was not to claim his rights under the Orissa Tenants Relief Act, Rs. 7000/-was paid under a receipt. The total consideration was thus paid and title passed under both the sales.

It is unnecessary to give the respective cases in the pleadings in further details for the disposal of this revision.

2. On 23-12-1963 the petitioners, as plaintiffs, filed T. S. 155/63 in the court of the Subordinate Judge of Cutlack, (hereinafter referred to as the Cuttack suit) against Bhubaneswar and his three sons as defendants. The averments in the plaint in the Cuttack suit are almost identical with the defence in the Athgarh case. The valuation of the Cuttack Suit is Rs. 9000/- and that of the Athgar suit is Rs. 2000/-.

3. On 6-2-1964 the petitioners filed an application in the Athgarh suit asking for stay of the suit till the disposal of the Cuttack suit. A copy of the plaint in the Cuttack suit was filed as an annexure to the written statement. The grounds taken in the petition for stay was that the decision in the Cuttack suit would constitute res judicata for the Athgarh Suit while that of the Athgarh suit would not constitute res judicata for the Cuttack suit, and that the parties would be unnecessarily harassed if in respect of the identical matter two proceedings are continued in two different Courts. This application was rejected by the learned Munsif, Athgarh, on 9-3-64 on the reasoning that he had no power to grant stay of the Athgarh Suit Under Section 10 or Section 151 C.P.C. The Civil Revision has been filed against this order.

4. Section 10 C.P.C. lays down that 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 litigation 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. The Athgarh suit was previously instituted. Section 10 has therefore no implication.

5. The next question for consideration is whether stay can be granted Under Section 151, C.P.C. which enacts that nothing in the Code of Civil Procedure shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. It has now been authoritatively pronounced in Manohar Lal Chopra v. Seth Hiralal, AIR 1962 SC 527 that the inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purpose mentioned in Section 151 of the Code, when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the legislature. Section 10 having no application to the present case, there is no provision in the Code which would be in conflict with the granting of stay Under Section 151 of the Code. Such grant of stay would not also be against the intention of the Legislature.

It has also been laid down that the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted Court of law deserves great care and consideration, and as such an order is not to be made unless absolutely essential for the ends of ends of justice.

6. The legal position is thus clear that the Court has inherent powers to grant stay Under Section 151 of the Code. The only question is whether it should be granted in the facts and circumstances of this case. The Athgarh suit represents the most typical illustration in which such power should be invoked and exercised. The averments of the plaint in the Cuttack suit constitute the identical defence in the Athgarh suit. In the Cuttack suit the issue in Athgarh suit would be completely decided. The decision in the Cuttack suit would constitute res judicata for the Athgarh suit while that in the Athgarh suit would not constitute res judicata for the Cuttack suit for the simple reason that the Munsif of Athgarh has no jurisdiction to try a suit of the valuation of Rs. 9000/-. That apart, when two suits are pending covering the same field, it would be unnecessary harassment to the parties to lead the same evidence in both the suits. Thus the stay of Athgarh suit would prevent abuse of process of the Court and is necessary for the ends of justice. Exercise of inherent powers of the Court Under Section 151 of the Code is essential in a case of this nature.

The learned Munsif failed to exercise a jurisdiction vested in him on the misconception that Section 151 of the Code has no application in the facts and circumstances of this case. The order of the learned trial Court is liable to be quashed by the High Court in exercise of its powers under Section 115(1)(b) of the Code.

7. In the result, the order passed by the trial Court refusing to stay the Athgarh suit is quashed. Title Suit No. 18 of 1963 in the Court of the Munsif of Athgarh is stayed till the disposal of Title Suit No. 155 of 1963 in the Court of the Subordinate Judge of Cuttack.

8. The Civil Revision is allowed. As there is no appearance for the opposite party, there will he no order as to costs.


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