Rajasthan High Court - Jodhpur
Lalit Upadhyay vs The Civil Judge, Nathdwara on 20 May, 2019
Equivalent citations: AIRONLINE 2019 RAJ 326, (2019) 4 RAJ LW 3180
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 18095/2018
1. Lalit Upadhyay S/o Late Shri Shyam Sunder Upadhyay,
Aged About 58 Years, By Caste Brahmin Resident Of Imli
Ke Niche Nathdwara, District Rajsamand.
2. Sudhakar Upadhyay S/o Late Shri Shyam Sunder
Upadhyay, Aged About 57 Years, By Caste Brahmin,
Resident Of Above Baroda Bank, Taxi Stand, Nathdwara,
District Rajsamand.
3. Ratnakar Upadhyay S/o Late Shri Shyam Sunder
Upadhyay, Aged About 53 Years, By Caste Brahmin,
Resident Of Mohangarh Nathdwara, District Rajsamand.
4. Smt. Rama Bachh D/o Late Shri Shyam Sunder Upadhyay
W/o Shri Satish Kumar, Aged About 55 Years, Resident Of
R.c. Vyas Colony, Bhilwara.
5. Smt. Snehlata Poronik D/o Late Shri Shyam Sunder
Upadhyay W/o Shri Shanti Kumar Ji Poronik,, Aged About
53 Years, By Caste Brrahmin, Resident Of Jhandagali
Jawad, Tehsil Jawad District Neemach (M.p)
6. Smt.Pushpa Upadhyay W/o Late Shri Harikant Upadhyay,
Aged About 61 Years, Resident Of Imli Ke Niche
Nathdwara, District Rajsamand Presently Residing At
Mukam Hiran Magri Sector- 4, Udaipur.
7. Atul Upadhyay S/o Late Shri Harikant Upadhyay, Aged
About 41 Years, By Catse Brahmin Resident Of Imli Ke
Niche Nathdwara, District Rajsamand Presently Residing
At Mukam Hiran Magri Sector- 4, Udaipur.
8. Sharad Upadhyay S/o Late Shri Harikant Upadhyay, Aged
About 36 Years, By Caste Brahmin, Resident Imli Ke Niche
Nathdwara, District Rajsamand Presently Residing At
Mukam Hiran Magri Sector- 4, Udaipur.
----Petitioners
Versus
1. The Civil Judge, Nathdwara, District Rajsamand.
2. Smt. Swati Bhatia W/o Shri Bhupesh Bhatia, Aged About
31 Years, By Caste Bhatia Resident Of Bichhu Magari
Bagol Road, Nathdwara Tehsil Tathdwara, District
Rajsamand.
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3. Shri Bhupesh Bhatia S/o Shri Balmukund Ji Bhatia, By
Cate Bhatia, Resident Of Bichhu Magari Bagol Road,
Nathdwara Tehsil Nathdwara District Rajsamand.
4. Shri Balmukund Ji Bhatia S/o Late Shri Babulal Ji Bhatia,
By Caste Bhatia, Aged About 60 Years, Resident Of Bichhu
Magari Bagol Road, Nathdwara, Tehsil Nathdwara District
Rajsamand.
----Respondents
For Petitioner(s) : Mr.Rajat Dave & Mr.Vineet Dave
For Respondent(s) : Mr.Vineet Sanadhya
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 14/05/2019 Pronounced on 20/05/2019
1. This writ petition under Article 227 of the Constitution of India has been preferred claiming the following reliefs:
"(i) The impugned order dated 15.11.2018 (Annex.14) to the extent of directing stay of Civil Suit No.178/2018 pending before the court of Civil Judge, Nathdwara may kindly be quashed and set aside with all consequential order.
(ii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the petitioner.
(iii) Costs of the writ petition may kindly be awarded to the petitioner."
2. Brief facts of this case, as noticed by this Court, are that the predecessor in title of the petitioners, Late Shri Shyam Sunder Upadhyay had purchased shops No.15, 16, 17 & 18 from (Downloaded on 28/06/2019 at 05:09:16 AM) (3 of 21) [CW-18095/2018] the then Goswami Tilkayat Ji by a registered sale deed dated 15.03.1971. By another registered sale deed dated 24.09.1977, Shri Shyam Sunder Upadhyay purchased the roof of five shops admeasuring 1323 sq. feet from Nathdwara Temple Board. Subsequently, Late Shri Shyam Sunder Upadhyay had purchased the roof of four shops, which were purchased vide sale deed dated 15.03.1971 and roof of the fifth shop which was belonging to Shri Arvind Kumar Bhatt.
3. Against the registered sale deed 24.09.1977 regarding purchase of the roof of the fifth shop, a suit for preemption was instituted by Shri Arvind Kumar Bhatt, the owner of the fifth shop, against Late Shri Shyam Sunder Upadhyay and the said suit was registered as Suit No.213/1978.
4. The aforesaid suit came to be decided by way of compromise between the parties, and the decree of preemption was granted for roof over the shop of Shri Arvind Kumar Bhatt. It was also agreed that between the shop of Shri Arvind Kumar Bhatt and Late Shri Shyam Sunder Upadhyay, there was a common area which was 2 feet 6 inches wide, and each of the parties shall be free to use 1 foot 3 inches thereof for making their own construction.
5. Shri Arvind Kumar Bhatt executed a registered sale deed dated 28.10.2016 in favour of the respondent-Smt.Swati Bhatia with respect to the plot measuring 370 sq. ft. as the shop in question became a plot due to dilapidation. (Downloaded on 28/06/2019 at 05:09:16 AM)
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6. The respondents obtained construction permission from the Municipal Board, Nathdwara and started construction on the site in question.
7. The petitioners filed a suit on 04.05.2017 claiming right of preemption before the Court of learned Additional District Judge, Nathdwara being Civil Suit No.08/2017 against the present respondents.
8. In the temporary injunction proceedings of Civil Suit No.08/2017, an interim injunction was granted in favour of the plaintiff/petitioners-Lalit Upadhyay & Ors. on 08.05.2017, and thereafter, on 14.02.2018, temporary injunction was granted in favour of the plaintiffs/petitioners. However on appeal being preferred by respondent/defendant-Smt.Swati Bhatia before this Hon'ble Court being S.B. Civil Misc. Appeal No.955/2018, the said temporary injunction order was set aside vide order dated 06.09.2018, while remanding the matter back to the learned trial court for decision afresh.
9. After remand, the learned trial court has again granted temporary injunction in favour of the plaintiffs/petitioners on 16.10.2018. Being aggrieved by the said order dated 16.10.2018, the respondent/defendant-Smt.Swati Bhatia preferred S.B. Civil Misc. Appeal No.2963/2018 before this Hon'ble Court, whereupon vide order dated 30.10.2018, the order of temporary injunction was stayed by this Hon'ble Court, which resulted into respondent No.2 raising construction at war footing.
10. At this juncture on getting the properties measured, the petitioners came to know that their property was being (Downloaded on 28/06/2019 at 05:09:16 AM) (5 of 21) [CW-18095/2018] encroached upon by the respondent-defendant to the extent of 2 feet, as they claimed from the sale deed dated 15.03.1971.
11. Thereafter, the petitioners filed another civil suit before the Court of learned Civil Judge, Nathdwara seeking permanent and mandatory injunction regarding 2 feet x 25.4 feet property of the petitioners on which they claimed that the encroachment was being made by the respondents, while raising the aforesaid construction.
12. Alongwith the aforementioned suit, the plaintiffs/petitioners also filed an application under Order 39 Rules 1 and 2 CPC alongwith an application for appointment of the Commissioner. The defendants/respondents as well have filed an application under Order 7 Rule 11 CPC regarding maintainability of the suit on account of the fact that the matter was being adjudicated in two parallel civil suits.
13. The learned trial court, after hearing the parties, vide order dated 15.11.2018, has although rejected the application filed by the respondents/defendants under Order 7 Rule 11 CPC, but in the same order, Section 10 of the CPC was invoked and the trial of the current suit has been stayed, until decision of the previous Suit No.08/2017.
14. The petitioners being aggrieved by the impugned order 15.11.2018, to the extent it relates to exercise of power under Section 10 CPC by which the trial of the current suit was stayed till disposal of Civil Suit No.08/2017, has approached this Hon'ble Court by filing the present writ petition. (Downloaded on 28/06/2019 at 05:09:16 AM)
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15. Learned counsel for the petitioners submitted that the issue in question in the previous suit No.08/2017 was the right of preemption whether accruing to the petitioners or not, whereas the issue in the subsequent suit, proceedings of which have been stayed, pertained to the petitioners' claim of ownership over a strip of land admeasuring 2 ft. x 25.4 feet between both the parties.
16. Learned counsel for the petitioners further submitted that for invocation of Section 10 CPC, the matter in issue in the subsequent suit has to be directly and substantially the same as in the previous suit, and thus, the suits which are based on different cause of actions, may not have any affect over the result of each other, and hence, invocation of Section 10 CPC may not be warranted.
17. Learned counsel for the petitioners relied upon the precedent law laid down by the Hon'ble Supreme Court in National Institute of Mental Health and Neuro Sciences Vs. C. Parameshwara, reported in AIR 2005 SC 242, relevant portion of which reads as under:
"8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the -same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other (Downloaded on 28/06/2019 at 05:09:16 AM) (7 of 21) [CW-18095/2018] nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra- distinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical."
18. Learned counsel for the petitioners has also placed reliance on the precedent law laid down by the Hon'ble Supreme Court in Aspi Jal & Anr. Vs. Khushroo Rustom Dadyburjor, reported in AIR 2013 SC 1712, relevant portion of which reads as under:-
"11. From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression (Downloaded on 28/06/2019 at 05:09:16 AM) (8 of 21) [CW-18095/2018] in Section 10, i.e. "no court shall proceed with the trial of any suit" makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences vrs.
C.Parameshwara, (2005) 2 SCC 256 in which it has been held as follows:
"8. The object underlying Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the (Downloaded on 28/06/2019 at 05:09:16 AM) (9 of 21) [CW-18095/2018] same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject-matter in both the suits is identical. The key words in Section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contradistinction to the words "incidentally or collaterally in issue". Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of the subject-matter in both the proceedings is identical."
12. In the present case, the parties in all the three suits are one and the same and the court in which the first two suits have been instituted is competent to grant the relief claimed in the third suit. The only question which invites our adjudication is as to whether "the matter in issue is also directly and substantially in issue in previously instituted suits". The key words in Section 10 are "the matter in issue is directly and substantially in issue in the previously instituted suit". The test for applicability of Section 10 of the Code is whether on a final decision being reached in the previously instituted suit, such decision would operate as res-judicata in the subsequent suit. To put it differently one may ask, can the plaintiff get the same relief in the subsequent suit, if the earlier suit has been dismissed? In our opinion, if the answer is in affirmative, the subsequent suit is not fit to be stayed. However, we hasten to add then when the matter in (Downloaded on 28/06/2019 at 05:09:16 AM) (10 of 21) [CW-18095/2018] controversy is the same, it is immaterial what further relief is claimed in the subsequent suit.
13. As observed earlier, for application of Section 10 of the Code, the matter in issue in both the suits have to be directly and substantially in issue in the previous suit but the question is what "the matter in issue" exactly means? As in the present case, many of the matters in issue are common, including the issue as to whether the plaintiffs are entitled to recovery of possession of the suit premises, but for application of Section 10 of the Code, the entire subject-matter of the two suits must be the same. This provision will not apply where few of the matters in issue are common and will apply only when the entire subject matter in controversy is same. In other words, the matter in issue is not equivalent to any of the questions in issue. As stated earlier, the eviction in the third suit has been sought on the ground of non-user for six months prior to the institution of that suit. It has also been sought in the earlier two suits on the same ground of non-user but for a different period. Though the ground of eviction in the two suits was similar, the same were based on different causes. The plaintiffs may or may not be able to establish the ground of non-user in the earlier two suits, but if they establish the ground of non-user for a period of six months prior to the institution of the third suit that may entitle them the decree for eviction. Therefore, in our opinion, the provisions of Section 10 of the Code is not attracted in the facts and circumstances of the case. Reference in this connection can be made to a decision of this Court in Dunlop India Limited vrs. A.A.Rahna & Anr. (2011) 5 SCC 778 in which it has been held as follows:
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(11 of 21) [CW-18095/2018] "35. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June 1998, in the second set of petitions, the period of non- occupation commenced from September 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the appellate authority because till 2-8- 1999, the premises were found kept open and alive for operation, The appellate authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K.Agarwal on 1-10-2001 that the Company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1-10-2001; that no activity had been done in the premises with effect from 1-10-2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, (Downloaded on 28/06/2019 at 05:09:16 AM) (12 of 21) [CW-18095/2018] the same were based on different causes.
Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the appellate authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause." (Underlining ours)"
19. On the other hand, learned counsel for the respondents submitted that the parties are same and the property in the subsequent suit is part of adjudication in the previous suit.
20. Learned counsel for the respondents further submitted that Section 10 CPC has been rightly invoked by the learned court below as once the decision in the previous suit comes, it will be clear what kind of the rights the petitioners will have over the property in question.
21. Learned counsel for the respondents also submitted that the previous suit contained the complete property, whereas the subsequent suit contained a part of the property.
22. Learned counsel for the respondents relied upon the precedent law laid down by the Hon'ble Supreme Court in Pukhraj D. Jain & Ors. Vs. G. Gopalakrishna, reported in AIR 2004 SC 3504, relevant portion of which reads as under:-
"4. We have heard learned counsel for the parties and have perused the records. In our opinion, the view taken by the High Court is wholly erroneous in law and must be set aside. The proceedings in the trial of a suit have to be conducted in accordance with provisions of the Code of Civil Procedure. Section 10 CPC no doubt lays down that no court shall proceed with the trial of (Downloaded on 28/06/2019 at 05:09:16 AM) (13 of 21) [CW-18095/2018] 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. However, mere filing of an application under section 10 CPC does not in any manner put an embargo on the power of the court to examine the merits of the matter. The object of the section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant to dictate to the court as to how the proceedings should be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. In a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and harassment of parties. However, where subsequently instituted suit can be decided on purely legal points without taking evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been instituted with an oblique motive and to cause harassment to the other side."
23. Reliance has also been placed by the learned counsel for the respondents on the judgment rendered by the Hon'ble Punjab & Haryana High Court in Ram Kanwar Vs. Partap Singh & Anr. (Civil Revision No.3373 of 1984 decided on 03.09.1985), relevant portion of which reads as under:
"4. There is no dispute between the parties that the matter in issue in all the aforesaid three suits is (Downloaded on 28/06/2019 at 05:09:16 AM) (14 of 21) [CW-18095/2018] common. In other words the matter in issue in the subsequently filed two suits is also directly and substantially in issue in the first suit filed by Ram Kanwar. The only objection raised by the Petitioner's counsel is that application for stay of the suit under Section 10 was filed only in the third suit, therefore, the trial Court was not competent to stay the second suit also which was filed by the Petitioner on 20th May, 1983. The point for consideration, therefore, is whether the trial Court could sue motu stay the second suit under Section 10 of the Code. The answer of this query must be in the affirmative. It is envisaged by Section 10 of the Code that it is incumbent upon the Court to stay proceedings 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. No option in this matter has been left to the trial Court Thus, in the instant case when it was brought to the notice of the trial Court that the matter in issue in two subsequently filed suits is also directly and substantially in issue in the first previously instituted suit between the same parties, it had no option but to stay the proceedings in the subsequent two suits. In the light of the provisions of Section 10 of the Code there is no merit in the Petitioner's contention that the second suit filed by him on 20th May, 1983 could be stayed only if application under Section 10 of the Code had been filed in that suit. In my view, the action of the trial Court in staying the two subsequent suits was not only proper but also essential."
24. Learned counsel for the respondents has also relied upon the judgment rendered by the Hon'ble Gauhati High Court in Subho Ram Kalita (Deceased By L.R.s) & Ors. Vs. Dharmeswar Das Koch & Ors. (Civil Revision No.24 of 1981 (Downloaded on 28/06/2019 at 05:09:16 AM) (15 of 21) [CW-18095/2018] decided on 29.04.1986), relevant portion of which reads as under:-
"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 for the 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 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 (Downloaded on 28/06/2019 at 05:09:16 AM) (16 of 21) [CW-18095/2018] 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 AIR 1935 85 (Privy Council) '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."(Downloaded on 28/06/2019 at 05:09:16 AM)
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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. 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 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 (Downloaded on 28/06/2019 at 05:09:16 AM) (18 of 21) [CW-18095/2018] 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 inherent power cannot be invoked to circumvent the express provisions of the Code. This was reiterated in Ram Karandas v. Bhagwan Das ; and Arjun Singh v.
Mohindra Kumar ; Ram Chand & Sons v.
Kanhayalal ; Nainsingh v. Koonwarjee . 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 : "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. 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 (Downloaded on 28/06/2019 at 05:09:16 AM) (19 of 21) [CW-18095/2018] Dayawala & Sons (P) Ltd. v. Invest Import, 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."
25. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent law cited at the Bar, this Court finds that the precedent law of the Hon'ble Supreme Court cited by learned counsel for the petitioners are (Downloaded on 28/06/2019 at 05:09:16 AM) (20 of 21) [CW-18095/2018] absolutely applicable in the present case, as both the suits are not having the matter in issue, which is directly and substantially common.
26. It is absolutely an admitted position that in the previous suit, the petitioners are exerting the right of preemption over the present respondents, and in the subsequent suit, the petitioners are exerting their right of ownership. In a simple test, the success of the suit for preemption shall not affect the right of ownership of the present petitioners, which is to be adjudicated in the subsequent suit, and hence, both the suits are virtually adjudicating different claims and issues, though the property in question and the parties may be common.
27. This Court also finds that the decision in both the suits may be contradictory verdicts, but such contradiction shall be totally in accordance with law.
28. The object of Section 10 CPC is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 CPC is whether on final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit.
29. In the present case, since the matter in issue in both the suits is not directly and substantially the same, therefore, a positive verdict in the previous suit for preemption or a negative verdict in the suit of preemption shall not affect the right of ownership of the petitioners being adjudicated in the subsequent (Downloaded on 28/06/2019 at 05:09:16 AM) (21 of 21) [CW-18095/2018] suit and thus, the res judicata in both the circumstances of the previous suit, being allowed or dismissed, will not operate.
30. Since the simple test as laid down by the Hon'ble Apex Court in the precedent law of National Institute of Mental Health and Neuro Sciences (supra), cited by learned counsel for the petitioners, clearly indicates that the res judicata is not applying, and also the precedent law of Aspi Jal & Anr. Vs. Khushroo Rustom Dadhburjor (supra) cited by learned counsel for the petitioners also clearly lays down that even if the parties are same and the courts are competent in both the suits, then also since the decision in the previous suit shall not operate as res judicata in the subsequent suit, therefore Section 10 CPC could not have been invoked by the learned court below.
31. In light of the aforesaid observations and the precedent law cited by learned counsel for the petitioners, the present writ petition is allowed and the impugned order dated 15.11.2018 to the extent of directing stay of Civil Suit No.178/2018, which is the subsequent suit pending before the Court of learned Civil Judge, Nathdwara is quashed and set aside. Stay Application No.17997/2018 stands disposed of accordingly.
(DR. PUSHPENDRA SINGH BHATI),J Skant/-
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