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Mayadhar Behera Vs. Bhagabat Nath and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 252 of 1981
Judge
Reported in58(1984)CLT598; 1984(II)OLR749
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10, 26, 115 and 151 - Order 6, Rule 17
AppellantMayadhar Behera
RespondentBhagabat Nath and anr.
Appellant AdvocateR. Mohanty, G.P. Bose and K. Patnaik
Respondent AdvocateB. Rath and J.K. Misra O.P. No. 1
DispositionPetition allowed
Cases ReferredBansidhar Naik v. Laxmiprasad Patnaik
Excerpt:
.....court has exercised jurisdiction with material irregularity in directing stay of hearing of the money suit in exercise or the inherent power under section 151, civil procedure code, and the ingredients of section 10, civil procedure code, are not satisfied to grant stay in the matter. 12. section 10, civil procedure code, 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..........as defendants.. the other partners categorically stated that they have possession over the suit house.5 on 8th september, 1980, defendant no. 1 filed an application for stay of the money suit pending disposal of the title suit. it is alleged that the partners of biraja talkies have filed written statement in title suit no. 8 of 1978 claiming the house in dispute with the land over which it has been constructed. as the ownership of the suit house is in dispute between the other partners of biraja talkies on one hand and plaintiff and defendant no. 2 on the other, the decision of the said suit would decide the fate of the claim of the plaintiff in this suit. therefore, the defendant no. 1 prayed for stay of the money suit. plaintiff filed an objection to the petition for stay of.....
Judgment:

S.C. Mohapatra, J.

1. Plaintiff is the petitioner against the order of the Teamed Munsif, Jajpur, staying the hearing of the money suit till disposal of Title Suit No. 8 of 1978 in the Court of Munsif, Jajpar.

2. Plaintiff's allegation is that the house which is a shop room; belongs to both plaintiff and defendant No. 2 who are the two brothers. Plaintiff has let out the house on monthly rent to defendant No. 1 since the middle of 1974, The monthly rent was agreed @ Rs. 50/-. Defendant No. 1 has not paid rent since September, 1974. He denied to pay the rent since 3rd August, 1977. Hence, Money Suit No. 310 of 1977 has been filed for recovery of arrear monthly rent for the period 1. 9, 1974 to 30.11.1977.

3. Defendant No. 1 in his. written statement denies the relationship of landlord and tenant. His case is that the house belongs to Biraja Talkies, a partnership firm. Biraja Talkies had let out the shop room to one Nityananda Das after Nityananda deposited security. Nitynanda was paying the rent each day to the Manager of the Biraja Talkies or the partners. Nityananda is carrying on the business of prepared betel (Khilipan) and other articles in that shop. Nityananda has several shops in the town. He has employed defendant No. 1 to carry on the business in the shop in dispute. Plaintiff is a partner of Biraja Talkies. The shop room does not belong to plaintiff or defendant No. 2 alone.

Defendant No. 2 in a separate written statement has claimed that both plaintiff and defendant No. 2, are entitled to the arrear rent from defendant No. 1. He stated that the description of the house in the plaint is wrong. His further case is that taking advantage of the financial instability of defendant No. 2, plaintiff with the intention of grabing the defendant's interest in the property has constructed forcibly few houses exclusively from out of his own fund and effort and is il'egally and forcibly realising all the rents from all such houses including that of the disputed house. Therefore, defendant No. 2 has filed Title Suit No. 8 of 1978. He alleges that defendant No. 1 has been inducted by him as a tenant since about 1974 and from the inception he is realising the rent from defendant No. 1.

4. After the written statements were filed, plaintiff filed an application for amendment of the plaint to incorporate the explanation that Nityananda Das is an imaginary name and defendant No. 1 is not the amployee of Nityananda. He has further claimed in the amendment that Biraja Talkies has no right, title or interest over the disputed house. The correct plot number and other description of the house was also given. This amendment was allowed and the plaint has since been amended.

An additional written statement has been filed by defendant No. 1 where, it has been alleged that in Title Suit No. 8 of 1978 pending in the Court of Munsif, the plaintiff of that suit, i. e., defendant No. 2 has impleaded Biraja Talkies and its partners including the plaintiff of this Suit, (petitioner) as defendants.. The other partners categorically stated that they have possession over the suit house.

5 On 8th September, 1980, defendant No. 1 filed an application for stay of the money suit pending disposal of the title suit. It is alleged that the partners of Biraja Talkies have filed written statement in Title Suit No. 8 of 1978 claiming the house in dispute with the land over which it has been constructed. As the ownership of the suit house is in dispute between the other partners of Biraja Talkies on one hand and plaintiff and defendant No. 2 on the other, the decision of the said suit would decide the fate of the claim of the plaintiff in this suit. Therefore, the defendant No. 1 prayed for stay of the money suit. Plaintiff filed an objection to the petition for stay of the money suit.

Plaintiff in his objection has alleged that Title Suit No. 8 of 1978 filed by defendant No. 2, has been instituted after the institution of the money suit. . In the title suit, defendant No. 1 has not been impleaded as a party. The cause of action and- the reliefs sought in both the suits are completely, different. It is alleged that the matter in controversy in both the suits not being directly or substantially in issue, the application for stay either under Section 10, Civil Procedure Code, or under Section 151, Civil Procedure Code, has no merit.

6. The copies of the plaint and the written statements in Title Suit No. 8 of 1978 were not filed in the money suit and the question of stay of money suit was considered on the allegations in the pleadings of of money suit and the petition with objection.

7. The learned Munsif has directed stay of the money suit on the following material finding :

'......There is no doubt that the decision of T. Section No. 8 of 1978 will not operate as res judicata between the parties to this suit but the present plaintiff and defendant No. 2 being parties to the said suit are bound by the decision thereof. If as per the decision of T. Section No. 8/78 proprietors of Biraja Cinema are found to be the real owners in respect of the disputed house and the site, the present plaintiff being bound by that decision will not be entitled to realise the arrear house rents in question from the present defendant No. J. Moreover, in appropriate cases under Section 151 C. P. C, an earlier suit can be stayed awaiting result of a subsequently instituted suit even if the provisions of Section 10, C. P. C, are not applicable......'

8. This Civil Revision has been filed against the aforesaid order.

9. Mr. R. Mohanty, the learned counsel for the petitioner has submitted that the trial Court has exercised jurisdiction with material irregularity in directing stay of hearing of the money suit in exercise or the inherent power under Section 151, Civil Procedure Code, and the ingredients of Section 10, Civil Procedure Code, are not satisfied to grant stay in the matter.

10. Mr. J. K. Misra, the learned counsel appearing for opposite party No. 1 defendant No. 1, has submitted that Section 10 is directly applicable to the facts of this case. Alternatively, he submitted that the trial Court having exercised its inherent power, there should be no interference in revision as the discretion has been exercised in the ends of justice.

11. On the aforesaid submissions, it is to be examined :

(a) Whether Section 10, Civil Procedure Code, is attracted to the facts and circumstances of this case;

(b) Whether the Court should exercise the inherent power;

(c) Whether, the exercise of the inherent powers can be interfered within revision.

12. Section 10, Civil Procedure Code, 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.'

13. In 1970 C. W. R. 402 ( M/s. Radha Gobind Traders v. M/s. G. R. Oil Mills) it is held that three requirements which must be satisfied before aid and Section 10 can be put into service. The three requirements are :

(i) The matter in issue is directly and substantially the same in both the suits;

(ii) The same party or patties claiming under the same title are concerned in both the suits ; and

(iii) The Court in which the previously instituted suit is pending is competent to grant the relief claimed in the subsequent suit.

14. While on behalf of the petitioner, it is urged that the matter in issue in the money suit is not directly and substantially the same in the title suit, on behalf of opposite party No. 1, it is claimed that title of the plaintiff is in dispute in the money suit and the same is directly in issue in the title suit.

15. To resolve this dispute, the facts are to be kept in view. The short fact in the money suit is that plaintiff has let out the house to defendant No. 1 on a monthly rent of Rs. 50/-. He, therefore, claimed to be landlord. Defendant No. 1 cannot dispute the title of the plaintiff in this case, if it is held that plaintiff has inducted him as a monthly tenant. In case the plaintiff has let out the house on monthly rent to defendant No. 1, he would be the landlord and is entitled to the recovery of rent from defendant No. 1. As title of plaintiff to the house need not be gone into for effective disposal of the money suit, it is not an issue in the money suit. Relationship of landlord and tenant between plaintiff and defendant No. 1 is not an issue in the title suit. Non-payment 'of rent by defendant No. 1 is also not an issue in the title suit. Thus, the first condition of Section 10, Civil Procedure Code, is not satisfied.

16. Admittedly, defendant No. 1 is not a party to the title suit. Nityananda Das under whom the plaintiff claims to be an employee in the shop is not also a party in the title suit.

To bring within the scope of second requirement, the learned counsel for opposite party No. 1 has submitted that in the written statement, he has alleged that Nityananda Das is the tenant under the partners of Bitaja Talkies. Partners of Biraja Talkies are parties in the title suit. As defendant No. 1 derived interest from Nityananda Das and Nityananda Das has derived interest from the partners of Biraja Talkies, it should be held that the second requirement is satisfied. Such a distant connection would not make the defendant No. 1 a party to the title suit. Thus, defendant No. 1 is in no way connected with the title suit and the second requirment is not satisfied.

17. Third requirement of Section 10, Civil Procedure Code, is also not satisfied. Money Suit No. 310 of 1977 and Title Suit No. 8 of 1978 have been filed in the Court of Munsif, Jajpur, and the Court is competent to grant the relief in both the suits. It is not disputed that considering the dates of institution, the money suit is the earlier instituted suit. To overcome this difficulty, learned counsel for opposite party No. 1 has submitted that on account of the written statements, the plaint was amended in the money suit denying the title of Biraja Talkies, the Firm or its partners. Thus, the date of amendment of the plaint should be taken' to be the date of institution of the suit. Institution of the suit has its own meaning and the date of amendment of plaint is not to be considered as the date of institution of the suit.

18. Trial Court has not directed the suit to be stayed under Section 10, C. P. C. It has exercised its inherent power under Section 151, Civil Procedure Code, to stay the suit.

19. It is now a settled position of law in this Court in a case reported in A. I. R. 1966 Orissa, 53 (Bansidhar Naik and Ors. v. Laxmi-prasad Patnaik) that even if Section 10 would not apply, jurisdiction could be exercised under Section 151, C. P. C. In paragraph 5, at page 54, it has been stated :

'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, C. P. C, Such grant of stay would not be against the intention of Legislature.'

It has further been held :

'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 justice.'

In paragraph 6, at page 55, it has been held :

'the legal position it 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.'

20. It is true that a discretion properly used is not to be interfered with in exercise of the revisional power. In AIR 1966 Orissa, 53 ( Bansidhar Naik v. Laxmiprasad Patnaik ) the revisional power was exercised on the finding that on the misconception that Section 151 of the Code, has no application in the facts and circumstances of the case, the learned Munsif failed to exercise his jurisdiction vested in him. In the present Civil Revision, the matter is reverse. The learned Munsif has exercised his jurisdiction in attracting the inherent power on the misconception that Section 151 of the Code, would be applicable in the facts and circumstances of this case. As I have already held that the money suit and the title suit are widely different excepting that the house in both the suits is the same, the exercise of the inherent-power is exercise of jurisdiction with material irregularity and High Court in exercise of the powers under Section 115(1)(c), Civil Procedure Code, can interfere with such exercise of power.

21. In the result, the Civil Revision is allowed. But in the circumstances, there will be no order for costs.


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