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Hiralal Vs. Kanhyalal - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 33 of 1951
Judge
Reported inAIR1953Raj184
ActsCode of Civil Procedure (CPC) , 1908 - Sections 10 and 151
AppellantHiralal
RespondentKanhyalal
Appellant Advocate Umadutta, Adv.
Respondent Advocate S.B.L. Saxena, Adv.
DispositionRevision dismissed
Cases ReferredDwarka Dass v. Governor General of India
Excerpt:
- - the learned civil judge has given good reasons that it would be a harassment to the parties if the present case is allowed to proceed pending the decision of kanhaiyalal's suit in district judge's court......the suit be stayed pending the decision of his suit in the district judge's court. the learned civil judge found that the suit could not be stayed under section 10, civil p. c. but he found it proper to stay the suit by virtue of section 151. civil p. c.3. in this revision, the learned counsel for the plaintiff applicant has argued that the suit could be stayed only if section 10, civil p. c. applied to the case and that the lower court acted illegally in staying it under section 151, civil p. c. which could not be invoked in the circumstances of the case. he relied upon a ruling of lahore high court reported in -- 'lakshmi insurance co. ltd., lahore v. b. k. kaula', air 1940 lah 85 (a). in this case, it was held by a single judge that'section 10, civil p. c. being not applicable.....
Judgment:
ORDER

Sharma, J.

1. This is an application by Hiralal plaintiff to revise the order of the Civil Judge Alwar staying the suit under Section 151, Civil P. C. The plaintiff is an assignee of a decree for ejectment and arrears of rent and arrears subsequent to the decree from one Ram Kumar who is the defendant pro forma in the present case. The decree in the ejectment and arrears of rent suit was given by the High Court Alwar in favour of Ram Kumar against Kanhayalal defendant 1. It is this decree which was assigned to the plaintiff. On the strength of that decree the plaintiff has obtained the possession of the property from Kanhayalal. This suit has now been filed for the recovery of arrears of rent accruing after the date of previous suit. Before the suit was filed, Kanhayalal filed another suit in the Court of the District Judge, Alwar for a declaration that Fateh Lal was an adopted son of Mt. Dhanni and was consequently entitled to the shop in suit. Fateh Lal has mortgaged the shop in favour of Kanhayalal and consequently the latter has also prayed for a declaration that he is a valid mortgagee of the shop in question.

2. An application was made in the lower Court by the defendant Kanhayalal that the suit be stayed pending the decision of his suit in the District Judge's Court. The learned Civil Judge found that the suit could not be stayed under Section 10, Civil P. C. but he found it proper to stay the suit by virtue of Section 151. Civil P. C.

3. In this revision, the learned counsel for the plaintiff applicant has argued that the suit could be stayed only if Section 10, Civil P. C. applied to the case and that the lower Court acted illegally in staying it under Section 151, Civil P. C. which could not be invoked in the circumstances of the case. He relied upon a ruling of Lahore High Court reported in -- 'Lakshmi Insurance Co. Ltd., Lahore v. B. K. Kaula', AIR 1940 Lah 85 (A). In this case, it was held by a Single Judge that

'Section 10, Civil P. C. being not applicable Section 151, Civil P. C. could not be invoked to stay the suit which could not be legally stayed.'

In reply to this ruling learned counsel for the opposite party has cited another ruling of the same High Court reported in -- 'Dwarka Dass v. Governor General of India in Council', AIR 1947 Lah 28 (B). In this case another single Judge Achhru Ram J, held that: 'In a case not covered by Section 10, the order for stay of subsequently instituted suit may be made under Section 151, Civil P. C. if the Court considers it necessary to make such an order in the interests of justice in order to avoid unnecessary harassment to any of the parties.' With respects to the learned Judge, who decided the case reported in -- 'AIR 1940 Lah 85' (A), I prefer to follow the view taken by Achhru Ram J. in the later Lahore case. Under Section 151, Civil P. C. a Court under its inherent powers makes such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court. Under No. 2, Sub No. 7, Chitaley in his commentary in the Civil Procedure Code, says that a court has inherent powers to stay the suit pending the decision in a connected proceeding, apart from Section 10 of the Code. An Appellate or Revision Court has similarly inherent power to stay further proceedings in the suit in the lower Court apart from Order 41, Rule 5 of the Code. It cannot, there-fore, be said that in such a case, a Court is not entitled in its inherent powers to stay a suit even though, Section 10, Civil P. C. may not be applicable. The learned Civil Judge has given good reasons that it would be a harassment to the parties if the present case is allowed to proceed pending the decision of Kanhaiyalal's suit in District Judge's Court. I do not find that in making the order which the learned Civil Judge has passed, he has either usurped any jurisdiction which was not vested in him or has acted illegally or with material irregularity in the exercise of his jurisdiction.

4. I do not find any force in the application for revision and it is dismissed. I, however, make no order as to costs of this revision under the circumstances of the case.


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