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2005 Supreme(Gau) 243
IN THE HIGH COURT OF GAUHATI
BIPLAB KUMAR SHARMA, J.
Samat Kumar Mundhra – Appellant
Vs.
Smt. Suman Kabra and Anr. – Respondent
W.P. (C) No. 1217 of 2005
Decided On: 18.03.2005
Advocate Appeared
For Appellant/Petitioner/Plaintiff: G.N. Sahewalla, Sr. Counsel, P. Bora, Md. Aslam, Md. A. Jalan, Md. Y. Ahmed and N.A. Singh, Advs.
For Respondents/Defendant: A. Sarma, A. Ozah and H.N. Sarma, Advs.
The main legal point established in the judgment is that the provisions of Section 10 of the CPC, which deal with the stay of a suit, must be carefully analyzed and applied to the specific facts and circumstances of the case. The court also emphasized that alternative pleas, such as consolidation of suits, must be consistent with the original prayers before the trial Court.
Headnote:
Stay - Civil Procedure Code - Section 10 - Summary of Acts and Sections: Section 10 of the Civil Procedure Code (CPC) - The court discussed the provisions of Section 10 of the CPC, which deals with the stay of a suit - The court also referred to Section 151 of the CPC, which provides for inherent powers of the court - The court analyzed the legal principles and interpretations of Section 10 and Section 151 of the CPC and their applicability to the case.
Fact of the Case:
The defendant in Title Suit No. 14/2004 filed a writ petition challenging the order of the trial Court dismissing the application for stay under Section 10 of the CPC read with Section 151. The plaintiff had filed a suit for ejectment of the defendant on grounds of non-payment of rent and bona fide requirements. The defendant had also filed a suit for specific performance in respect of the same premises. The trial Court rejected the defendant's application for stay, leading to the present proceeding under Article 227 of the Constitution of India.
Finding of the Court:
The court found that the provisions of Section 10 of the CPC were not applicable to the case, as admitted by the defendant's counsel during the proceedings. The court also rejected the defendant's alternative plea for consolidation of both suits, as it was not the original prayer before the trial Court. The court emphasized that the defendant's application for stay was an attempt to delay the proceedings in the former suit.
Issues: The issues revolved around the applicability of Section 10 of the CPC for stay of the former suit, the defendant's plea for consolidation of both suits, and the defendant's attempt to delay the proceedings in the former suit.
Ratio Decidendi: The court's decision was based on the finding that the provisions of Section 10 of the CPC were not applicable to the case, and the defendant's alternative plea for consolidation was not supported by the original prayer before the trial Court. The court also noted that the defendant's application for stay appeared to be an attempt to delay the proceedings in the former suit.
Final Decision: The court dismissed the application under Article 227 of the Constitution of India, finding no merit in the defendant's claim for stay or consolidation of the suits.
B.K. Sharma, J.
1. While issuing notice in this case by order dated 18-2-2005, it was observed that an attempt would be made to dispose of the matter on the returnable date. The respondents have entered appearance through their learned Counsel. The matter has been heard at length.'
2. The defendant in Title Suit No. 14/2004, who is the petitioner in the instant writ petition has assailed the legality and validity of the order dated 24-1-2005 passed by the trial Court dismissing the application filed by the defendant under Section 10 of the CPC read with Section 151.
3. The respondents herein as the plaintiff have instituted Title Suit No. 14/2004 in the Court of Civil Judge (Junior Division) No. 1, Jorhat praying for a decree of khas and vacant possession of the suit premises. The suit has been filed for ejectment of the defendant/petitioner on ground of non-payment of monthly rent and bona fide requirements of the plaintiffs.
4. The defendant/petitioner has entered appearance in the suit by filing written statement. After institution of the said suit by the respondents, the defendant/petitioner has also instituted Title Suit No. 48/2004 before the Civil Judge (Senior Division), Jorhat praying for a decree for declaration of his right for specific performance in respect of the suit premises on ownership basis and for execution and registration of necessary sale deed thereof by the respondent No. 1 herein, since he offered to sell the suit premises in occupation of the petitioner for valuable consideration and that some amount was already paid.
5. Admittedly the suit filed by the present petitioner i.e. Title Suit No. 48/2004 was filed after filing of the aforesaid Title Suit No. 14/2004 by the respondents while the former suit was filed in the Court of Civil Judge (Junior Division) No. 1, Jorhat, the later suit was filed in the Court of the Civil Judge (Senior Division), Jorhat.
6. After filing of the later suit by the present petitioner, he filed an application under Section 10 of the CPC read with Section 151 for stay of further hearing of Title Suit No. 14/2004 filed by the respondents. In the application, narrating the material facts, it was pleaded that both the cases being by and between the same parties, the former suit was required to be stayed. Further plea taken in the application was that, in the event of decreeing the later suit, former suit would become infructuous. Accordingly it was prayed to stay the former suit till disposal of the later suit filed by the present petitioner.
7. The respondents filed their written objection against the said petition urging inter alia that the prayer made by the petitioner is contrary to the provisions of Section 10 of the CPO. It was stated in the objection that if the conditions specified in Section 10 of the CPC, were attracted, it was the later suit which was required to be stayed.
8. The learned Civil Judge (Junior Division) No. 1, Jorhat by the impugned order dated 24-1-2005 has rejected the prayer of the petitioner for stay of the former suit. Being aggrieved the petitioner has instituted the present proceeding under Article 227 of the Constitution of India.
9. I have heard Mr, G.N. Sahewalla, learned Senior Counsel assisted by Mr. B. Sarma, learned Counsel for the petitioner. I have also heard Mr. A. Sarma, learned Counsel for the respondents. Placing reliance on the decision of this Court reported in (on the death of Subho Ram Kalita v. Sri Dharmeswar Das Koch) and the decision of the Apex Court reported in AIR 2004 SC 1687 (Chitivalasa Jute Mills v. Jaypee Rewa Cement), Mr. Sahewalla strenuously argued that the findings arrived by the learned Civil Judge in the impugned order dated 24-1-2005 is perverse requiring interference of this Court. He submitted that the suit premises in both the suits being one and the same and in the event of allowing the later suit for specific performance, former suit by and between the same parties would become infructuous and in consideration
