Patna High Court
Dr. N.P. Tripathi vs Smt. Dayamanti Devi And Anr. on 25 September, 1986
Equivalent citations: AIR1988PAT123, AIR 1988 PATNA 123, (1987) 2 CIVLJ 615, (1987) BLJ 590, (1987) PAT LJR 724, (1988) 1 RENCR 461
JUDGMENT S.K. Jha, J.
1. This revision application is directed against the order dated 17-1-1985 passed by the 1st Additional Munsif, Patna in Title Suit No. 87/83 57/84 by the defendant in the action. By the impugned order the trial court has rejected the prayer of the defendant-petitioner that further proceedings in the suit should remain stayed till the decision of Title Suit No. 360/82, on an application made by the petitioner under Section 10, Civil P.C., (herein-
after referred to as the Code). This case was referred by a learned single Judge of this Court to a Division Bench for an authoritative decision on the point that in the circum stances of the case even if it be held that the provisions of Section 10 of the Code do not apply, inherent powers of the court can be invoked under Section 151 of the Code. Hence this case before us.
2. If the provisions of Section 10 of the Code squarely cover the point debated at the Bar, this application has to be allowed. If, on the contrary, it be held that there is no scope for attracting the provisions of Section 10 then only a question arises as to whether in such cases the inherent powers of the Court under Section 151 of the Code can be invoked treating them as exception to the general rule that stay be not granted in such cases. Learned counsel for the petitioner while canvassing the case even before us insisted that this case was squarely covered by the provisions of Section 10 of the Code and, therefore, the impugned order suffers from jurisdictional infirmity. In the alternative he half-heartedly submitted that recourse may in such cases be taken to Section 151 of the Code also. If that were the stand taken by learned counsel before the learned single Judge, perhaps, this could not have necessitated a reference to a Division Bench at all. But before dealing with the question with regard to the applicability of Section 10 of the Code to such a case, the facts first. They follow.
3. Title Suit No. 360 of 1982 was instituted by the petitioner for a decree for specific performance of contract against one Ramesh Prasad and his brother whose successors in interest are the plaintiffs in Title Suit No. 97/83 (opposite parties 1 and 2 here). The petitioner filed the earlier suit and he was made a defendant in the suit culminating in the impugned order. This suit, namely. Title Suit No. 97/83 is one for eviction under the summary procedure as mandated by law in Section 14, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (Bihar Act 4 of 1983) (hereinafter referred to as the Act on the ground of personal necessity, pure and simple. In the earlier Title Suit, namely, Title Suit No. 360/82 opposite parties 1 and 2 were arrayed in the category of defendants as being transferees not for value and not in good faith and with notice of the contract of sale between Ramesh Prasad and others and the present petitioner. A further allegation in the plaint of the earlier suit, namely, the suit for specific performance of contract has been made that a substantial part of the consideration money under the contract had already passed and possession handed over to the petitioner pursuant thereto. The deed of agreement (or contract) is the one dated the 3rd December, 1979. The claim of the petitioner in this application is that after the execution of the deed of agreement he continued to remain in possession not qua tenant but dehors the tenancy in his own right as a transferee. To put it in legal parlance Section 53A, T.P. Act was sought to be used as a sword and not a shield -- as a weapon of offence rather than a shelter of defence under the Jaw. That is entirely not permissible under the statutory and salutary provisions of Section 53A, T.P. Act, which does not envisage eviction under the Control Act to be inhibited by filing of a prior suit by the adversary claiming a title on the basis of an alleged deed of agreement of sale and desirous of getting a decree for specific performance of contract therein. It is well settled that Section 53A, T.P. Act can be used only as a shield and not as as word. For all practical purposes the trial court has held that the matters directly and substantially in issue in the earlier suit are not directly and substantially in issue in the subsequent suit. It has, therefore, held that the suit did not come within the ambit and scope of Section 10 of the Code.
4. It is now contended and it has been debated at the Bar by learned counsel for the petitioner that the matter in the earlier suit is directly and substantially in issue in the subsequent eviction suit and, therefore, the court below has committed an error of jurisdiction in saying that Section 10 was not applicable. It was contended that the question for determination in the present suit, namely, the eviction suit which is a subsequent one is with regard to the establishment of relationship of landlord and tenant between the parties which has a direct and substantial bearing upon the question involved in the earlier suit for specific performance of contract. I do not see any force in this contention. That is for a simple and obvious reason. So far as the suit for specific performance of contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sals. Merely filing a suit for specific performance of contract does not confer or is founded upon a fact that a title has accrued in the property in question under the deed of agreement or contract for sale. The title becomes perfect only if two conditions are fulfilled, namely, (1) all the ingredients for a decree to be passed in such suits are found by the court to be correct and (2) a decree for execution of a deed of sale is passed in favour of the plaintiff of that suit within a specified period failing which it shall be registered by and under the orders of the court of competent jurisdiction subject, of course, to the payment of full consideration money within the stipulated period as specified in the decree. And such a decree can only be passed in the event of a transfer has already been effected before the institution of the suit in favour of the third party who can claim by virtue of his own right if he establishes that he is entitled to the property in preference to the plaintiff being a bona fide purchaser for value and without notice of the contract (attracting the provision of caveat emptor). Therefore, the title to the property can pass to the plaintiff in a suit for specific performance of contract only after the fulfilment of the following conditions :
(1) The plaintiff has succeeded in proving that the agreement upon which he based his claim is a true and genuine one;
(2) He has already performed his part of the contract by payment of earnest money;
(3) He is still ready and willing to perform his part of the contract; and (4) If there is any subsequent purchaser to the agreement before the institution of the suit such a transferee was not a bona fide transferee and had not been able to prove either his bona fide or lack of notice on his part and even after the decree is passed compelling the defendant in such a case it would be in the terms of directing the plaintiff to perform his part of the imperfected bargain within a certain specified time on the performance of which the defendant in such a suit is ordered or directed to execute a sale deed and get it registered either voluntarily or under the due process of law as specified in the decree. So long as the sale deed is not executed, no title in the property passes to the plaintiff of the suit for specific performance of contract. Merely because he institutes a suit saying that there was an agreement for contract of sale he cannot be said to be the owner of the property, even if it were so held because no sale deed had been executed in his favour till then.
Therefore, it is manifest that the question with regard to the ownership of the properly is not the subject-matter of dispute either indirectly or directly and substantially in such a suit vis-a-vis the landlord, who is alleged to be a party to the agreement for sale and who was the original owner thereof.
5. Section 14 of the Act stands on a different footing altogether. The question of title is not directly and substantially in issue in a suit for eviction under Section 14 of the Act, because the Control Act is a self-contained Code wherein the term 'landlord' in the definition clause has been given a fictional connotation as including the person who, for the time being, is receiving, or is entitled to receive the rent of a building whether on his own account or on behalf of another or for the benefit of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the buildings were let to a tenant. This inclusive definition is, for all practical purposes, an all-embracing definition. Correspondingly, the term 'tenant' has been defined as meaning (not including) any person by whom, or on whose account rent is payable for a building and includes (a) a person continuing in possession after the termination of the tenancy in his favour and (b) a person who occupies a building as an employee of the landlord of such building either on payment of rent or otherwise. In so far as the definition of the term "tenant" is concerned, it is a hard and fast definition containing the inclusive clause therein whereas the term landlord' has been given an extended meaning by the inclusive clause. The question, therefore, in a suit for eviction under the Act that arises is as to whether the plaintiff is a landlord in the suit within the meaning of the Act which, in its turn, has various ramifications.
6. It is admitted, as already noticed above, that the petitioner was in possession of the property as a tenant of the plaintiff-opposite parties in this suit. But in order to forestall such a claim of eviction an earlier suit may well have been filed in the shape of a suit for specific performance of contract. That cannot, in law, enable or entitle the petitioner to say that after the execution of the alleged deed of agreement for sale he continued to remain in possession not qua tenant but dehors the tenancy in his own right as a transferee. Merely by institution of a suit for a specific performance of contract or, for that matter, that by agreement of sale, can it lie in the mouth of the petitioner to say that he is remaining in possession of the premises inducted upon it by the plaintiff-opposite parties who were admittedly the owners thereof and to whom the petitioner had attorned that he had acquired title merely by entering into a deed of agreement for sale. Can it be said that he became the owner of the properly and no longer remained a tenant irrespective of the fact that no title deed (sale deed) has been executed in his favour? Therefore, it is manifest that the matter directly and substantially in issue in the two suits are not the same. The question of attracting the provisions of Section 10 of the Code, therefore, does not arise at all because the matter is not even indirectly, what to talk of directly and substantially, in issue in both the suits.
7. If the petitioner confines his claim to support this application on the basis of Section 10 of the Code, there can be no manner of doubt that he must fail. Nonetheless, learned counsel for the petitioner pressed upon our attention a Division Bench decision of the Bombay High Court in the case of Jai Hind Iron Mart v. Tulsiram Bhagwandas AIR 1953 Bom 177 in which it has been said that Section 10 does not contemplate an identity of issues between the two suits, nor does it require that the matter in issue in the two suits should be entirely the same or identical. What the section requires is that the matter in issue in the two suits should be directly and substantially the same, and proper effect must be given to the language used by the legislature in Section 10 that the identity required is a substantial identity. There must be an identity of the subject matter, the field of controversy between the parties in the two suits must also be the same, but the identity contemplated and the _field_ of controversy contemplated should not be identical and the same in every particular, but the identity and the field of controversy must be substantially the same (underlining is mine for the sake of emphasis). No one can strike a discordant note in principle as laid down by the Bombay High Court. But in the instant case, as I have already indicated, the identity of the subject matter, the field of controversy between the parties in the two suits are not the same nor are they identical in every particular nor is the identity in the field of controversy substantially the same. This case cannot be pressed into service in support of the petitioner. Learned counsel then invited our attention to the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 which is absolutely irrelevant in the context of the present case. Both the facts and the principle were absolutely alien to the ambit of the present suit. The only portion of the Supreme Court judgment, if at all relevant, is to the effect that 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 such an order is not to be made unless absolutely essential for the ends of justice (underlining is mine for the sake of emphasis). It was held on the facts of that case which are plainly distinguishable from those in the instant case that the provisions of Section 10 are clear, definite and mandatory. A court in which a subsequent suit has been filed is prohibited from proceeding with the trial of that suit in certain specified circumstances. Those specified circumstances have already been taken note of by me earlier and none of them falls within the sweep of the Supreme Court decision.
8. In the last resort learned counsel relied upon a Division Bench decision of this Court in the case of Bishwanath Balkrishna v. Smt. Rampeyari Devi AIR 1979 Pat 159. In that case all that has been held by the Division Bench is that where first a suit for eviction under Section 11 was filed on the ground of personal need of the landlord and the subsequent suit was filed on the ground of default in payment of rent for more than two months, the second suit could not be barred under Section 10 C.P.C. because the cause of action in the first and the second suits were different though the relief claimed was the same. I, for one, fail to appreciate as to how this case, in any manner, can be said to support the stand of the petitioner.
9. In the alternative, then, it was contended on behalf of the petitioner that assuming that Section 10 in terms or in substance was not applicable, it was a fit case in which the subsequent suit for eviction on the ground of personal necessity be stayed under Section 151 of the Code. There are certain well settled principles and norms having the seal of approval of the highest Court of the land in the very case which has been relied upon by learned counsel for the petitioner, namely, the case of Manohar Lal Chopra (supra), (AIR 1962 SC 527). It has been said therein that it is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. Section 151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice (underlining is mine for the sake of emphasis). It has further been said that when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. If the ends of justice demands it, there being no such expression in Section 94 of the Code which expressly prohibits the issuance of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 C.P.C., if the Court is of opinion that the interests of justice require the issuance of such interim injunction. In a nutshell, therefore, inherent powers of the Court have to be resorted to only ex debito justitiae. Let me pause here for the purpose of examining as to whether the ends of justice require any intervention by the Court under Section 151 of the Code. In that context I have already observed earlier that it may have been for the purpose of forestalling the suit for ejectment that the former suit was filed. Can it then be said to a bona fide act of the petitioner requiring to subserve the ends of justice? But that apart, the contention of learned counsel for the petitioner has to be rejected on a firm ground which no law can countenance. By resorting to the inherent powers under Section 151 of the Code the petitioner will be frustrating the very object and purpose of a bilateral munificent piece of legislation such as the Control Act of 1982 setting at naught the legislative mandate thereby rendering nugatory the provisions of Section 14 of the Act. I can say with all the vehemence at my command that to take recourse to such a procedure would not only be not subservient to the ends of justice but would be overriding the special procedure mandated by a self contained Code as the Control Act. It would indeed be an abuse of the process of the Court by trying to induce the Court to render Section 14 of the Control Act as otiose and redundant. Therefore, ultimately I am constrained to hold that invoking the inherent powers of the Court under Section 151 of the Code would, on the facts and in the circumstances of the case, amount to an abuse of the process of the Court and there can be no manner of doubt that such a recourse cannot be said to subserve the ends of justice; rather would be inducing the Court to resort to a procedure which will do complete injustice to the parties as contrary to ex debito justitiae.
10. Having considered the matter in all its ramifications, I have no option but to hold that the impugned order although a short one can be fortified by such a lengthy judgment of a Division Bench of this Court. This application is, accordingly, dismissed but without any cost.
S.S. Sandhawalia, C.J.
11. I agree.