Gauhati High Court
Subho Ram Kalita (Deceased By L.R.S) And ... vs Dharmeswar Das Koch And Ors. on 29 April, 1986
Equivalent citations: AIR 1987 GAUHATI 73, (1987) 2 CIVLJ 510 (1987) 2 GAU LR 109, (1987) 2 GAU LR 109
Bench: K.N. Saikia, S.N. Phukan, B.L. Hansaria
JUDGMENT Saikia, J.
1. Hansaria, J. sitting singly has referred the following question to Division Bench :
"Whether recourse to Section 151, C.P.C. is permissible for staying a suit or for injuncting a plaintiff of a later suit from proceeding with his case under those circumstances where the requirements of Section 10, C.P.C, are not satisfied."
2. The question has arisen under the following facts and circumstances. The plaintiff-petitioner instituted Money Suit No. 59/75 against the defendant-opposite party No. 1 and two others for Rs. 3,696/-being the price of 132 maunds of paddy on account of damage for use and occupation of 10 B. 4 K. 16 Laches of plaintiff-petitioner's land. Munsiffs court decreed the suit for Rs. 21/- holding that the defendant was a tenant under the plaintiff. The plaintiff preferred therefrom Money Appeal No. 5/76 before the Assistant District Judge who allowed the appeal decreeing the suit for Rs. 3,696/-. The defendant therefrom preferred Second Appeal No. 6/78 which was still pending in the High Court.
3. The plaintiff-petitioner later on 27-2-78 instituted Title Suit No. 15/78 against the defendants-opposite parties Nos. 1 and 2 in respect of 13 B. 2 K. 2 Ls. of land covered by K. P. Patta No. 41 under Dag Nos. 69, 168, 538." The defendants-opposite parties contested the suit filing a written statement denying the plaintiffs claim and stating that the defendant-opposite party No. 1 had been in occupation for more than 44 years and that the plaintiff-petitioner was never in possession. In T.S.No. 15/78 the defendants-opposite parties 1 and 2 filed petition No. 2995/79 under Section 10 of the C.P.C. for staying the suit until the Second Appeal No. 6/78 arising out of M.S.No. 59/74 was finally decided by the High Court. The plaintiff-petitioner filed objection thereto but the learned Assistant District Judge in his order dated 29-9-80 held that the parties and the suit land in M.S.No. 59/74 and T.S. No. 15/78 were the same; and that in both the suits the defendants clamied that they have been possessing the land at an annual rent of Rs. 7/-. The M.S.No. 59/74 was decreed for Rs. 21/- being the rent for three years; and, therefore, in the Second Appeal No. 6/78 pending before the High Court, the issue was whether the defendants-opposite parties were or were not tenants under the plaintiff-petitioner, and in both the suits the same question was to be decided; and, therefore, if by invoking Section 10, C.P.C. the T.S.No. 15/78 was not stayed and it was decided during the pendency of the Second Appeal No. 6/78, there will be conflicting decisions, and, therefore, the Court invoking Section 10, C.P.C. stayed the later suit, namely, T.S.No. 15/78, till the earlier M.S.No. 59/74 was finally decided in Second Appeal No. 6/78 by the High Court.
4. From the aforesaid order the plaintiff-petitioner filed Civil Revision No. 24/81 in this Court On rival contentions on the validity of the stay order Hansaria, J. observed division of opinion on the question whether a suit could be stayed in exercise of inherent power; and that relying on Monohar Lal v. Seth Hiralal, AIR 1962 SC 527 in AIR 1967 Orissa 172, Khali Panda v. Dharam Gauda; AIR 1972 Andh Pra 186, Manta Subbaramaya v. Batchu Narasimha Swamy, AIR 1981 Delhi 332 Grindlay's Bank Ltd.v. Hindustan Embroidery Mills Ltd., Section 151, C.P.C was not resorted to. On the other hand in AIR 1966 Cal 382 Jugomental Trg Republika v. Rungta & Sons; AIR 1975 All 413, Jado Rai v. Onkar Prasad and AIR 1977 Him Pra 38, Gurdial Singh v. Auckland House School it was held that despite Section 10, C.P.C. recourse to Section 151, C.P.C. was permissible.
5. In ILR( 1978) Gau 109, Harikanta Singh v. Mustt. Khudeja Khatun after referring to Manohar Lal (supra) and various other decisions of the Supreme Court Sadanandaswamy, C. J. concluded that where the circumstances mentioned in Section 10, C.P.C. are not fulfilled, it is riot open to the Court to resort to its inherent powers and to stay the subsequent suit, as such an order will be contrary to the specific provisions of Section 10, C.P.C. After referring to AIR 1964 SC 993 Arjun Singh v. Mahindra Kumar, AIR 1966 SC 1899, Ram Chand & Sons v. Kanhayalal, on the scope of Section 151 C.P.C. vis-a-vis different other provisions of C.P.C., Hansaria, J. was satisfied that this was a fit case where Section 10, C.P.C. was not applicable and Section 151 could have been invoked for stay of the subsequent suit; but as this decision ran counter to the view expressed by Sadanandaswamy C.J. in Harikanta Singh (ILR(1978) Gau 109)(supra) the aforementioned question was referred to Division Bench so that final order in the revision petition may be passed after receipt of the opinion.
6. The question may be refrained as follows :
"Under those circumstances where the requirements of Section 10, C.P.C. are not satisfied whether recourse to Section 151, C.P.C. is permissible for (a) staying a suit, or (b) injuncting a plaintiff of a later suit from proceeding with the case?"
7. For answering the question we are to consider the scopes and ambits of Sections 10, and 151, C.P.C. and of the provisions of law relating to injunction and Section 151, C.P.C. Section 10 of the C.P.C. reads :
"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.
Explanation. -- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."
8. The premise in the question referred to is that the above circumstances are not satisfied, which means that Section 10, C.P.C. is not applicable.
9. Section 151, C.P.C. saves the inherent power of the Court. It provides :
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary forthe ends of justice or to prevent abuse of the process of the Court."
On the basis of the above premise and presumption, we are inclined to take the view that under those circumstances where the requirements of Section 10 are not satisfied, in other words, Section 10 is not applicable, and yet an order to stay a later suit is considered necessary for the ends of justice or to prevent abuse of the process of the Court, there can be no bar in doing so in exercise of powers under Section 151, C.P.C. inasmuch as the circumstances being not covered by Section 10, C.P.C. it cannot be said that the inherent power is being resorted to under circumstances covered by an express provision in the C.P.C.; and ex hypothesi, there shall be no violation of the provisions of Section 10,, C.P.C. The crucial question will be whether under the circumstances of the case the provisions of Section 10, C.P.C. are or are not applicable? If those are applicable the order has to be passed within the provisions of that section. If those are not applicable order of stay can still be passed under Section 151, C.P.C. In Monohar Lal v. Seth Hiralal, AIR 1962 SC 527 at para 39 Raghubar Dayal, J. speaking for himself and Wanchoo and Dasgupta, JJ., said : "The suit at Bangalore which had been instituted later could be stayed in view of Section 10 of the Code. The provisions of the section 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 under certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under Section 151 is not justified. The provisions of Section 10 do not become inapplicable on a court holding that the previously instituted suit is a vexatious suit or has been instituted in violation of the terms of the contract."
Shah, J. at paragraph 43 said :
"The Code of Civil Procedure is undoubtedly not exhaustive; it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The Civil Courts are authorised to pass such orders as may be necessary for the ends of justice, or to prevent abuse of the process of court, but where an express provision is made to meet a particular situation the Code must be observed, and departure therefrom is not permissible. As observed in 62 Ind App 80 : AIR 1935 PC 85--
'It is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the Court a statutory discretion, there can be implied in court outside the limits of the Act a general discretion to dispense with the provisions of the Act'.
Inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive."
10. As the question referred relates to circumstances under which the requirements of Section 10, C.P.C. are not satisfied, the answer will virtually depend upon the scope of Section 151, C.P.C. Section 151 does not clothe the civil court with inherent powers; but only saves the inherent powers which a court possesses to make orders necessary for the ends of justice or to prevent abuse of the process of the court. The courts are not precluded from administering justice merely because there is no specific provision of law. The inherent powers of the court are very wide and are residuary in nature and are in addition to the powers conferred specifically by the Code and are complementary to those powers as was held in Padam Sen v. State of U. P., AIR 1961 SC 218. The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. Inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code. As was ruled in Nainsingh v. Koonwarjee, AIR 1970 SC 997 while exercising the inherent power under Section 151, C.P.C. a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words, the Court cannot make use of Section 151, C.P.C. where a party has his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure from them. Section 151 comes for rescue in such-unforeseen circumstances. Inherent powers, therefore, can be availed of ex debito justitiae only in absence of express provisions in the Code, but not when their exercise may be in conflict with what has expressly been provided elsewhere in the Code. When applied 'for the ends of justice' we mean justice that the Code of Civil Procedure is designed to achieve. It is in the interest of justice that an injury should be remedied and needless expense and inconvenience to parties avoided. The expression 'abuse of the process of the Court' must be construed with due regard to the rest of the provisions of the Code. The inherent power is really intended to prevent the Courts from being rendered impotent by any omissions in the Code. Again, as was ruled in Manilal v. Sayed Ahmed, AIR 1954 SC 349 inherent power cannot be invoked to circumvent the express provisions of the Code. This was reiterated in Ram Karandas v. Bhagwan Das, AIR 1965 SC 1144; and Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993; Ram Chand & Sons v. Kanhayalal, AIR 1966 SC 1899; Nainsingh v. Koonwarjee, AIR 1970 SC 997. The necessity for doing justice is the root of the inherent power. As was quoted in the Newabganj Sugar Mills Co. Ltd. v. The Union of India, AIR 1976 SC 1152 : "The inherent power has its roots in necessity and its breadth is co- extensive with the necessity". In Jaipur Mineral Development Syndicate Jaipur v. The Commr. of I.T., AIR 1977 SC 1348 it was observed that the courts have power in the absence of any express or implied prohibition to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the Court. To hold otherwise would result in quite a number of cases in gross miscarriage of justice. In Ramji Dayawala & Sons (P) Ltd. v. Invest Import, AIR 1981 SC 2085, vis-a-vis Section 34 of the Arbitration Act it was held at para 19 that if the application for stay is under Section 151, C.P.C. invoking inherent jurisdiction of the Court to grant stay, the burden will be on the party seeking stay to establish facts for exercise of discretion in favour of such party.
11. The above being the enunciation of the scope and ambit of Section 151, C.P.C. there is no reason why order staying a suit or injuncting a plaintiff from proceeding with a later suit cannot be passed under those circumstances where requirements of Section 10, C.P.C. are not satisfied. Under such circumstances the question of violating or circumventing the provisions of Section 10, C.P.C. would not and could not arise. The other requirements will be whether such order is considered justified for the ends of justice or for preventing abuse of the process of the Court and whether such an order is expressly or specifically prohibited by any other provisions of the C.P. C. or any other Act. In other words, under those circumstances where the requirements of Section 10, C.P.C. are not satisfied but an order staying the later suit or injuncting the plaintiff from proceeding with it is necessary for the ends of justice or for preventing abuse of the process of the Court and such an order is not specifically or expressly prohibited by any other provision of the Code of Civil Procedure or any other Act, such an order can be passed under Section 151, C.P.C.
12. In P. V. Shetty v. B.S. Giridhar, AIR 1982 SC 83, where under Section 14 of the Karnataka Rent Control Act the tenant submitted an application for fixation of fair rent and he was paying Rs. 640/- as monthly rent, and subsequently an eviction suit was filed by landlord alleging that protection under the Act was not available to the tenant and the application of the tenant for stay of the eviction suit was rejected by High Court, considering that if the tenant's application was allowed and rent fixed at Rs. 500/- or less he would be entitled to protection under the Act, Supreme Court set aside the rejection order of the High Court and stayed the eviction suit. Their Lordships held at para 2 :
"If the stay of further proceedings in the suit, as prayed for by the appellant, is not granted and the suit proceeds and results in eviction, the application for fixation of fair rent becomes infructuous. On the other hand, if the application for fixation of fair rent is allowed holding that the appellant is a tenant as understood under the Rent Act, and the fair rent is Rs. 500/- or less per month he would be entitled to the protection of the Rent Act which determination will have impact on the suit, subject, of course, to other contentions that may be raised in the suit. Now it is an admitted position that the application for fixation of fair rent preceded the filing of this suit. Obviously, therefore, the just and fair approach, balancing the equities would be to stay further hearing of the suit till the application for fixation of fair rent is decided."
Thus where Section 10, C.P.C. was not applicable stay was granted under Section 151, C.P.C.
13. As regards injuncting the plaintiff of a later suit from proceeding with the suit, under Section 151, C.P.C. and outside the provisions of Order 39, Rules 1, 2 and 4 we have to follow the same principle of not violating any express provisions of law. In Cotton Corporation India v. United Industrial Bank, AIR 1983 SC 1272, Supreme Court examined the question whether in view of the provision contained in Section 41(b) of the Specific Relief Act, 1963 the Court will have jurisdiction to grant an injunction restraining any person from instituting any proceeding in a Court not subordinate to that from which the injunction is sought? In other words, can a person be restrained by an injunction of the Court from instituting any proceeding which such person is otherwise entitled to institute in a Court not subordinate to that from which the injunction is sought? The High Court too is of the view that it had such powers in view of the provisions contained in Order 39, of the C.P.C. read with Section 37 of the Specific Relief Act, 1963 or in exercise of the inherent powers of the Court under Section 151, C.P.C. The question arose under the following facts and circumstances. The respondent Bank, (shortly 'the Bank') sued the appellant Corporation (shortly 'the Corporation') in original side of Bombay High Court for declaration that the acceptance and/or co-acceptance of the bills of exchange and/or hundies by the second defendant Tapan Kumar Ghosh on behalf of the Bank was null and void and not binding upon the Bank and calling upon the Corporation to deliver those up to the Court for cancellation. The Bank took out a notice of motion seeking to restrain by an interim injunction the Corporation from enforcing any claim whatever in any forum and for an interim injunction restraining the Corporation from negotiating or endorsing the bills. The notice of motion was dismissed and the Bank having appealed, a Division Bench allowed the appeal and granted an interim injunction restraining the Corporation from presenting a winding up petition against the bank. Their Lordships discussed the scope of preventive relief in Part III of the Specific Relief Act, and how Section 56(b) of the old Act of 1887 stood amended in Section 41(b) of the Specific Relief Act, 1963 which said :
"41. An injunction cannot be granted : --
(a).....
(b) to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought."
Interpreting Sub-section (b) of Section 41 their Lordships observed :
"The Legislature manifestly expressed its mind by enacting Section 41(b) in such clear and unambiguous language that an injunction cannot be granted to restrain any person, the language takes care of injunction acting in personam, from instituting or prosecuting any proceeding in a Court not subordinate to that from which injunction is sought. Section 41(b) denies the jurisdiction to grant an injunction restraining any person from instituting or prosecuting any proceeding in a Court which is not subordinate to the Court from which the injunction is sought. In other words, the court can still grant an injunction restraining a person from instituting or prosecuting any proceeding in a Court which is subordinate to the Court from which the injunction is sought As a necessary corollary, it would follow that the Court is precluded from granting an injunction restraining any person from instituting or prosecuting any proceeding in a Court of co-ordinate or superior jurisdiction."
Their Lordships also observe that Section 41 deals with perpetual injunctions and has nothing to do with interim or temporary injunction which, as provided by Section 37 are dealt with by the C.P.C. Their Lordships have observed that any one having a right that is legally protected interest complains of its infringement and seeks relief through Court must have an unhindered, uninterrupted access to law Courts. Access to justice must not be hampered even at the hands of judiciary. Power to grant injunction vests in the Court unless the Legislature confers specifically such power on some other forum. "Now access to Court in search of justice according to law is the right of a person who complains of infringement of his legally protected interest and a fortiori therefore no other Court can impede access to justice. A superior Court, however, can injunct a person by restraining him from instituting or prosecuting a proceeding before a subordinate Court. Legislature's desire is that Courts ordinarily should not impede access to justice through Court. Section 41(b) therefore provides that an "injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding and this is subject to one exception, namely, superior Court can injunct a person from instituting or prosecuting an action in a subordinate Court. A Court is precluded from granting an injunction restraining a person from instituting or prosecuting a proceeding in a Court of coordinate jurisdiction or superior jurisdiction. The question whether a court can grant an injunction against a person restraining him from instituting or prosecuting a proceeding before itself was left unresolved as it was not necessary in the facts of that case.
14. Section 41(b) of the Specific Relief Act, 1963 deals with the cases in which perpetual injunction cannot be granted. Under Section 28(3) when the defendant invades or threatens to invade the plaintiffs right to, or enjoyment of, property, the Court may grant a perpetual injunction in a case (d) where the injunction is necessary to prevent a multiplicity of judicial proceedings. However, neither the text nor the illustrations warrant the supposition that any general jurisdiction for one judicial authority to restrain the proceedings of another has been created.
15. Section 37(1) clearly says that temporary injunctions are such as are to continue until a specified time, or until the further order of the Court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure. Section 37(2) says that a perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually injuncted from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff. As was held in Mac Laboratories (P) Ltd. v. V.R. Nathan (1967) 1 Mad LJ 353, while temporary injunction are governed by Order 39, Rule 1, C.P.C., still the principles under the Specific Relief Act relating to permanent injunctions are applicable. The plaintiff must make out a strong prima facie case as to his right (Donmar Production Ltd. v. Bart (1967) 2 All ER 338; Harman Pictures v. Osborne (1967) 2 All ER 324). The question of injuncting a plaintiff from proceeding with the later suit has to be decided in accordance with the above rulings.
16. A Division Bench of this court in Oil and Natural Gas Commission, Nazira v. Ganesh Prasad Singh, AIR 1983 Gau 8 relying on AIR 1961 SC 218, Padam Sen v. State of U. P. and Monohar Lal (AIR 1962 SC 527) (supra) held that in cases not covered by Section 10, C.P.C. in terms, the Court may, in very exceptional circumstances, stay a suit under Section 151, C.P.C. for the ends of justice or preventing abuse of the process of the Court. However, the Court cannot overlook the well-settled principle of law governing the stay of suits, where there is identity of the subject matter and the Court at least must be satisfied that to allow the subsequent suit to continue would be oppressive or vexatious to the defendant and that the stay would not cause injustice to the plaintiff in the subsequent suit. We agree with this view. This was followed in Mohan Chandra Deka v. Smt. Himani Talukdar, AIR 1985 Gau 62 where relying on Monohar Lal (supra); AIR 1965 SC 1144, Ram Karandas v. Bhagwandas; AIR 1966 SC 1899, Ram Chand Sugar Mills v. Kanhayalal, AIR 1964 SC993, Arjun Singh v. Mohindra Kumar, it was held that the provisions of Section 10, C.P.C. 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. When there is a special provision in the C.P.C. for dealing with the contingencies of two such suits being instituted, recourse to the inherent power under Section 151, C.P.C. is not justified. Otherwise, however the hands off attitude of the High Court in revision would not be justified where interference is necessary for the ends of justice. AIR 1982 SC 83 and AIR 1983 Gau 8 were relied on.
17. For the foregoing enunciation of the law including the Division Bench decision of this Court in AIR 1983 Gau 83, we answer the reference in the affirmative as follows :
Under those circumstances where the requirements of Section 10, C.P.C. are not satisfied, recourse to Section 151, C.P.C. is permissible for staying a suit or for injuncting a plaintiff from proceeding with the case, provided the Court is satisfied that such a recourse is necessary for the ends of justice or to prevent abuse of the process of the Court, and it is not violative of any express and specific provision of the C.P.C. or any other law applicable to the case to be stayed or injuncted. Reference, answered accordingly.
18. The Civil Revision Petition shall now be placed before Hansaria, J, for passing final order.
S.N. Phukan, J.
19. I agree.
B.L. Hansaria, J. (Final order dt. 5-5-86)
20. The grievance in this petition is related to the order passed by the learned Assistant District Judge No. 1, Gauhati, staying T. Section 15 of 1978 till the decision of SA 6/78 pending in this Court. The main point urged in support of the petition was that as the case was not covered by Section 10 of the Civil P. C., the suit could not have been stayed. A submission was advanced on behalf of the opposite parties that the stay could have been ordered in exercise of powers conferred by Section 151 of the Code. For reasons given in my earlier judgment and order dated 11-5-85, I had felt satisfied that the present was a fit case where Section 151 could be invoked to stay the suit in question; but having noted that a view had been taken by this Court in Harikanta Singh v. Khudeja Khaturi, ILR (1978) Gau 109 that where circumstances mentioned in Section 10 are not fulfilled, it is not open to the court to resort to its inherent powers and to stay the subsequent suit, I had referred the following question of law for decision by a Division Bench : --
"Whether recourse to Section 151, C.P.C. is permissible for staying a suit or for injuncting a plaintiff of a later suit from proceeding with his case under those circumstances where the requirements of Section 10, C.P.C. are not satisfied".
21. This question was reframed as below by the Division Bench : --
"Under those circumstances where the requirements of Section 10, C.P.C. are not satisfied whether recourse to Section 151, C.P.C. is permissible for (a) staying a suit, or (b) injuncting a plaintiff of a later suit from proceeding with the case?"
The Bench has answered the reframed question as below : --
"Under those circumstances where the requirements Section 10, C.P.C. are not satisfied, recourse to Section 151 C.P.C. is permissible for staying a suit or for injuncting a plaintiff from proceeding with the case, provided the Court is satisfied that such a recourse is necessary for the ends of justice or to prevent abuse of the process of the Court, and it is not violative of any express and specific provision of the C.P.C. or any other law applicable to the case to be stayed or injuncted."
22. As I had earlier felt satisfied that the present was a fit case where Section 151 could have been invoked for staying the suit in question, and as Division Bench has opined that recourse to Section 151 is permissible to stay a suit if the same is felt necessary for the ends of justice or to prevent abuse of the process of the Court, and as it has been fairly admitted by Shri A. C. Sarma that recourse to Section 151 in the present case is not violative of any express or specific provision of the Civil Procedure Code or any other law applicable to the case at hand, the impugned order cannot be interfered with.
23. The petition is, therefore, dismissed.