The court established that even if Section 10 of the Code of Civil Procedure does not squarely apply, the provision of Section 151 can be applied to a case of instant nature, and the court has the power to act ex debito justitiae and to do real and substantial justice for the administration of which alone the Court exists.

JUDGMENT :

HIRANMAY BHATTACHARYYA, J.

1. The order dated 27th July, 2023 passed by the learned Civil Judge, (Junior Division), Additional Court, Sealdah in Title Suit No. 247 of 2019 is under challenge in this application under Article 227 of the Constitution of India at the instance of the plaintiff.

2. By the order impugned, the application under section 151 of the Code of Civil Procedure praying for stay of all further proceedings of Title Suit No. 247 of 2019 till the disposal of the Revocation Case No. 1 of 2019 was allowed.

3. Mr. Biswas, learned advocate appearing for the petitioner submits that the suit for recovery of possession, upon revocation of license, could not have been stayed till the disposal of the revocation proceeding as the nature and character of the two proceedings are not identical. He further submits that the suit for eviction being an earlier proceeding cannot be stayed under section 10 of the Code of Civil Procedure on the ground of pendency of a revocation proceeding.

4. Mr. Biswas places reliance upon a decision of a coordinate Bench delivered on 23rd August, 2010 in C.O. 1895 of 2010 in support of his contention that eviction proceeding cannot be stayed during pendency of the revocation proceeding. He also places reliance upon a decision of a coordinate Bench in the case of Jayanta Kumar Mondal & Ors. vs. Brojo Gopal Dalal & Anr. reported at 2007 (1) CLJ (Cal.) 725 in support of his contention that the issues in the suit for eviction and the revocation proceeding being different, Court cannot pass an order of stay of the eviction suit in exercise of powers under section 10 of the Code of Civil Procedure.

5. Mr. Banerjee, learned advocate appearing for the opposite party places reliance upon an order of a coordinate Bench dated 13th February, 2012 in C.O. 3802 of 2011 in support of his contention that the eviction proceeding should be stayed till the revocation matter is decided. He also places reliance upon a decision of an Hon’ble Division Bench of this Court in Jugometal Trg Republike vs. Rungta and Sons Private Limited reported at AIR 1966 Cal. 382 in support of his contention that in cases where section 10 of the Code of Civil Procedure is not applicable, Court has the power to pass an order of stay in exercise of its powers under section 151 of the Code of Civil Procedure.

6. Heard the learned advocates for the parties and perused the materials placed.

7. The petitioner herein filed the suit for recovery of possession on revocation of license being Title Suit No. 247 of 2019 before the Court of the learned Civil Judge, Junior Division, Additional Court at Sealdah claiming that the suit property originally belonged to Gobardhan Halder and Smt. Gouri Halder. The petitioner claims that Gobardhan Halder during his lifetime executed a registered will in respect of his ½ share in the property and bequeathed his share to the petitioner and after the demise of the said Gobardhan Halder, he became the owner of ½ share of the suit property by virtue of the grant of probate to the last will and testament of the said Gobardhan Halder.

8. Petitioner further claims that the other co-owner viz. Smt. Gouri Halder, during her lifetime executed a registered deed of gift in favour of the petitioner in respect of the remaining ½ share of the suit property. By virtue of the probate of the will of Gobardhan Halder and the deed of gift executed by Gouri Halder, the petitioner claims to be the absolute owner of the suit property and filed the suit for eviction upon revocation of license.

9. The opposite party herein filed an application for revocation of probate, which was registered as Revocation Case No. 1 of 2019, which is pending before the learned Additional District Judge, Fast Track Court No. 1 at Sealdah.

10. The opposite party herein filed an application under section 151 of the Code of Civil Procedure praying for stay of all further proceedings of the eviction suit till the disposal of the revocation case. Such appl