Telangana High Court
Smt. Sunanda S. Shah vs Sri. A. Rajeshwar on 23 June, 2023
THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU
CIVIL REVISION PETITION NO.739 OF 2022
ORDER :
This Civil Revision Petition has been filed by the petitioner, who is the plaintiff in O.S.No.496 of 2021, under Article 227 of the Constitution of India assailing the Order dated 19.01.2022 passed in I.A.No.783 of 2021 in O.S.No.496 of 2021 by learned III Additional Junior Civil Judge, City Civil Court, Hyderabad, whereunder the petition filed by the respondent/defendant under Section 10 read with Section 151 of the Code of Civil Procedure, 1908 (for short 'C.P.C') seeking stay of all the proceedings in O.S.No.496 of 2021, until the disposal of inter-pleader suit filed by the respondent/defendant i.e., O.S.No.533 of 2021 before the I Additional Senior Civil Judge, City Civil Court, Hyderabad, and the other suit filed by the third party seeking declaration of title over the same 2 property vide O.S.No.16 of 2020 on the file of the II Additional Chief Judge, City Civil Court, Hyderabad, or until further orders of higher Courts, was allowed granting stay all the proceedings as sought for by the respondent/defendant.
2. The petitioner herein has filed O.S.No.496 of 2021 against the respondent for recovery of possession, mesne profits and for depositing rents of the premises shown in the schedule mentioned property pending disposal of the suit. Prior to the above said suit, the brother-in-law of the petitioner/plaintiff, namely, Mr.Sudhir S Shah has filed another suit vide O.S.No.16 of 2020 before the II Additional Senior Civil Judge, City Civil Court, Hyderabad, against the petitioner and also against the respondent herein and other tenants seeking declaration of the title and for recovery of possession and rents of the premises and also for perpetual 3 injunction. Therefore, the respondent, who is shown as defendant in O.S.No.496/2021, moved an application vide I.A.No.111 of 2021 in O.S.No.16 of 2020 seeking permission to deposit the rents to the credit of the suit. However, the said application was disputed by the petitioner/plaintiff and his brother-in-law, who is plaintiff in O.S.No.16 of 2020. The petition filed by the respondent/defendant and other tenants vide I.A.No.111 of 2021 was dismissed. Even though they moved revision before this Court vide C.R.P.No.1279 of 2021, it was subsequently dismissed as withdrawn giving liberty to the petitioner therein to avail alternate remedy.
3. Thereafter, the respondent/defendant filed the above referred I.A.No.783 of 2021 seeking stay of all proceedings on the ground that there was title dispute between the petitioner/plaintiff and her brother-in-law (Mr.Sudhir S Shah) and both the 4 parties are pressurizing the respondent/defendant and the other tenants to pay the rents of the premises. Therefore, they filed inter-pleader suit i.e., O.S.No.533 of 2021 before the I Additional Senior Civil Judge, City Civil Court, Hyderabad, seeking permission to deposit the rent into the Court or to any one of the parties or to both of them proportionately. They have filed I.A.No.816 of 2021 and obtained Status-quo Order. The respondent/defendant while filing I.A.No.783 of 2021 has submitted that in view of Order XXXV, Rule 3 of C.P.C, they have already informed the Court below about the inter-pleader suit by filing a memo along with the plaint copy in which the Court below ordered both the parties to maintain Status-quo. Therefore, sought for stay of all proceedings on the ground that in view of Order XXXV, Rule 3 of C.P.C stay of ejectment proceedings against the respondent/defendant in the light of the fact that inter-pleader suit becomes obligatory.
5
4. The petitioner herein being respondent in the said interlocutory application and plaintiff in the main suit opposed the said petition and that the Special Power of Attorney holder of the petitioner/plaintiff has filed counter stating that the above said suit and petition have been filed by the respondent/defendant at the instance of her brother- in-law, who is disputing the title of the petitioner herein and there was collusion between the respondent/defendant and her brother-in-law. Thereby, prayed for dismissal of the petition.
5. The Court below having heard both the parties, placing reliance on the Judgment referred by the respondent/defendant in Om Prakash Kapoor v. Nirmala Devi1, allowed the petition and granted stay of all further proceedings in O.S.No.496 of 2021, until disposal of inter-pleader suit vide O.S.No.533 of 2021. 1 1998 Law Suit (P&H) 966 6
6. Being aggrieved by the said Order, the petitioner, who is the plaintiff in the main suit, having narrated the factual matrix of the case filed this Civil Revision Petition on the following grounds:
i) The Court below failed to consider whether it has jurisdiction to stay its own proceedings on an application filed under Section 10 read with Section 151 of C.P.C. The ratio laid down in the case of Om Prakash Kapoor (1 supra) cannot be applied between the parties as the same is distinguishable from the facts of the case on hand.
ii) The Court below has erroneously exercised its jurisdiction while misinterpreting the provisions under Order XXXV Rule 3 of C.P.C and that by reading the said proviso, it indicates that when an inter-pleader suit is pending before the Court, the Court in which the inter-pleader suit is pending shall exercise the jurisdiction by 7 informing the other Court to stay the proceedings but in the main suit no such notice has been sent. The Court below cannot apply the principle of inter-pleader suit insofar as a case between the landlord and tenant is concerned especially when learned II Additional Chief Judge, City Civil Court, Hyderabad, has categorically stated that the tenants were paying rents to the husband of the plaintiff in its order dated 03.06.2021 dismissing the I.A.No.111 of 2021 in O.S.No.16 of 2020 in which the defendant is one of the petitioners.
iii) The Court below has failed to consider that Section 10 of C.P.C. is not applicable to the facts of this case while Order XXXV Rule 5 of C.P.C is also not applicable as the tenant cannot sue the landlord, for the purpose of compelling them to interplead that any persons other than making claims through such principle or landlord and 8 that a tenant cannot interplead between two parties by filing inter-pleader suit as such the Court below has no jurisdiction to stay its own proceedings.
iv) The Court below has observed that to avoid multiplicity of proceedings, the matter has to be stayed but the issue between the plaintiff and the defendant in this case is only with reference to the tenancy matter and title is irrelevant for the consideration by the tenancy Court is concerned.
The Court below has further observed that the party can file a transfer application, in fact, the observations of the Court below are beyond its power, thereby, the Court below has exceeded the jurisdiction staying its own proceedings. Therefore, sought for setting aside the order impugned in this Civil Revision Petition. 9
7. Heard learned counsel appearing for both the parties. Perused the record.
8. On perusal of the material available on record, it demonstrates that the petition filed by the respondent/defendant under Section 10 read with Section 151 of C.P.C seeking stay of all proceedings in O.S.No.496 of 2021 till disposal of inter-pleader suit filed by the respondent/defendant i.e., O.S.No.533 of 2021 and another suit vide O.S.No.16 of 2021 filed by the brother-in-law of the petitioner herein.
9. Before adverting to the facts disputed in this Civil Revision Petition, it would be convenient to see the circumstances under which the above referred interlocutory application has been preferred. As per the averments made in O.S.No.496 of 2021, the petitioner, namely, Smt.Sunanda S Shah is the absolute owner of the property consisting five floors 10 situated at Gujarati Galli, Sultan Bazar, Hyderabad, by virtue of a registered settlement deed. According to the case as set out in the plaint, it is her case that her husband was the absolute owner of the property along with the other properties having acquired right under a holographic Will dated 19.03.1998 executed by his father late Sri Damodar Das Mukund Das in favour of her husband. She has claimed that after the death of her father-in-law, her husband became absolute owner of the property and he has executed a registered gift deed in favour of the petitioner/plaintiff. The respondent/ defendant, who has filed I.A.No.783 of 2021, was one of the tenants of the petitioner/plaintiff. The brother-in-law of the petitioner/plaintiff i.e., brother of her husband, who disputes the genuineness of the Will and who is claiming right over the property, filed a suit vide O.S.No.16 of 2020, for declaration of the title, recovery of possession and to declare the holographic Will dated 19.03.1998 as illegal, and to 11 restrain the tenants from paying rents. Therefore, there was a suit filed by the petitioner/plaintiff for eviction of the tenants and the other suit is filed by her brother-in-law i.e., brother of her husband claiming title over the property.
10. The respondent/defendant having made an attempt to deposit the rents into the Court could not succeed and thereby, he filed inter-pleader suit vide O.S.No.533 of 2021 and filed the above referred petition. The said petition was opposed by the petitioner herein on the ground that a tenant is not entitled to file a inter-pleader suit and even if such a suit has been filed without there being any information from the Court concerned, the Court below could not have passed a stay while exercising jurisdiction under Section 10 read with Section 151 of C.P.C. 12
11. In support of her contention, the petitioner herein has placed reliance on Hanumanth Vajhula Jagannadha Sastry v. Vajhula Annapurna Rajeswaramma2 wherein the erstwhile High Court of Andhra Pradesh held that a tenant cannot file a inter- pleader suit. Therefore, according to the petitioner herein, when the respondent/defendant is not entitled to file such a suit he cannot seek stay of the proceedings on the ground of the inter-pleader suit and the Court below without considering the said contentions of the petitioner herein, simply placing reliance on Om Prakash Kapoor (1 supra), which is distinguishable in the light of the above referred Judgment passed stay. Thereby, sought for its vacation.
12. Heard learned counsel appearing for both the parties. Perused the record.
2 2003 SCC Online AP 1137 13
13. Now the point that would emerge for determination is:
Whether the Court below exceeded its jurisdiction in allowing I.A.No.783 of 2021 and whether the stay is liable to be vacated ?
14. From the petition affidavit and counter affidavit of the parties and in view of the discussion in the impugned Order, there is no dispute with regard to the certain facts. The petitioner herein having claimed right over the schedule mentioned property and other properties filed four different suits seeking eviction of the tenants, who are shown as defendants in the said suits, apart from, seeking recovery, rents and deposit of mesne profits. The brother-in-law of the petitioner herein i.e., the own brother of her husband, filed another suit claiming title over the property and sought for recovery of schedule mentioned property and declaration of title and for perpetual injunction, etc,.
14
15. It is an admitted fact that the respondent herein and the other tenants tried to obtain permission to deposit rents into the Court below but the said request was negatived. Therefore, they filed above referred inter-pleader suit and filed I.A.No.783 of 2021 in the main suit for stay of the proceedings. In fact, the petition is filed under Section 10 of C.P.C. which reads as follows:
Section 10 of C.P.C: 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 1[India] have jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1[India] established or continued by 2[the Central Government 3* * *.] and having like jurisdiction, or before 4[the Supreme Court]."15
It is not the case of the respondent/petitioner the matter in issue in the suit i.e., inter-pleader suit, and matter in issue in the suit filed by the petitioner/respondent for eviction of respondent/ petitioner and mesne profits, etc., is one and the same. The respondent/petitioner never claimed in the petition filed by him vide I.A.No.783 of 2021 that the matter in issue in their suit is directly and substantially in issue in the suit filed by the petitioner herein. In fact, the suit filed by the petitioner was for eviction whereas the other suit filed by the respondent/plaintiff is inter-pleader with a different prayer. In the light of the above, it is very clear that in the above stated circumstances, the respondent/ defendant's request for stay of all the proceedings in O.S.No.496 of 2021 under Section 10 of C.P.C. cannot be granted.16
16. The other ground on which he sought for stay of proceedings is under Order XXXV Rule 3 of C.P.C. In the said regard, erstwhile High Court of Andhra Pradesh in Hanumanth Vajhula Jagannadha Sastry (2 supra) placing reliance on Yeshwant Bhikaji Vilankar v. Sadashiv Govind Arekar3, held that the tenant is forbidden to bring inter-pleader suit to compel his landlord to inter-plead with any person.
17. In fact, according to Order XXXV, Rule 3 of C.P.C nothing in this Order shall be deemed to enable the agents to sue their principals, or tenants to sue their landlords, for the purpose of compelling them to inter-plead with any persons other than persons making claim through such principals or landlords. 3 AIR 1940 BOM 414 17
18. As per the proviso to the Order XXXV Rule 3 of C.P.C, where any of the defendants in a inter- pleader suit is actually suing the plaintiff in respect the subject matter of such suit, the Court in which the suit against the plaintiff is pending shall, on being informed suit has been instituted, stay the proceedings as against him and the costs in the suit so stayed may be provided for in such suit. Therefore, in view of the said provision, unless, there is information from the Court where the inter-pleader suit has been filed, no stay can be granted by the said Court.
19. In the case on hand, admittedly there was no such information from I Additional Senior Civil Judge, where the respondent/defendant filed the inter- pleader suit. In addition to that when he is a tenant he is not entitled to file inter-pleader suit. The respondent seeks the stay of all the proceedings on the basis of the said inter-pleader suit, which cannot be maintainable. 18
20. Moreover, the Trial Court in spite of the arguments advanced by the petitioner herein, simply negatived their claim on the ground that the Court below cannot come to a conclusion about the right of a tenant to file inter-pleader suit since the same is subject matter pending before the I Additional Senior Civil Judge, City Civil Court, Hyderabad. While ordering stay, the Court below had observed in its order that if the parties are under the impression that the matter will be delayed till disposal of the suit, they can approach the appropriate Court for getting transfer all the proceedings. The Court below cannot avoid the arguments advanced by the counsel by simply saying that the party can approach a higher Court for transfer of the proceedings when the suit filed by the respondent/defendant itself is not maintainable.
19
21. After careful analysis of the material placed before this Court, this Court is of the considered opinion that the Order impugned in this Civil Revision Petition suffers from irregularity and warrants interference of this Court and accordingly, the Order impugned in this Court is liable to be set aside.
22. In the light of the discussion made hereinbefore, this Civil Revision Petition is allowed. As a consequence thereof, I.A.No.783 of 2021 in O.S.No.496 of 2021 on the file of the III Additional Junior Civil Judge, City Civil Court, Hyderabad, is dismissed. There shall be no order as to costs.
Pending, miscellaneous applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU DATED 23.06.2023 YNK 20 THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU CIVIL REVISION PETITION NO.739 OF 2022 DATED 23.06.2023 YNK