Alauddin Ansari vs Mohammad Jan Mian and Others

S.K. Choudhuri, J.—This revision by the defen-dant is directed against the order dated 15th Feb., 1983 passed in Title Suit No. 23 of 1982 rejecting the prayer of the petitioner to stay the further proceedings in the suit Until final disposal of Title Suit No. 90 of 1982 filed by the petitioner in the Court of the Subordinate Judge, Sitamarhi.

The relevant facts are these. The present title suit was filed by the plaintiffs-opposite party for eviction of the defendant-petitioner. A decree for arrears of rent was also claimed in the suit. This suit, it appears proceeded to the stage of taking evidence. The impugned order shows that the evidence of the plaintiffs has been taken to a great extent. During the pendency of this suit, the petitioner filed a suit as plaintiff against the members of the opposite party in the Court of the Subordinate Judge Sitamarhi. which has been numbered as Title Suit No. 90 of 1982. In this suit a decree for specific performance of contract has been prayed.

It appears that there are three revisional survey plot Nos. 1928, 1929 and 1930, which stand recorded in the names of the three brothers, namely, opposite party Nos. 1 and 2 and the husband of opposite party No. 3. The petitioner was inducted as a tenant in one of the rooms standing in a portion of the aforesaid plots at the rate of Rs. 85/-: per month. He paid rent up to Match, 1981 and thereafter made default. Hence, Title Suit No. 23 of 1982 was brought against him.

The petitioner brought the aforesaid Title Suit No. 90 of 1982 on the allegation that the opposite party separated amongst themselves and as the husband of opposite party No. 3 was ailing, he needed money for his treatment and, therefore, he contracted to sell one katha of land out of his own share in the aforesaid plots at Rs. 15,000/-. According to him, Rs. 10,000/- was paid and the Mahadanama was executed and the balance of the consideration money was agreed to be paid at the time of the execution of the sale-deed. Shortly after the execution of the Mahadanama, the husband of opposite party No. 3 died and, therefore, he sent a notice to the members of the opposite party to execute the sale-deed but as the sale-deed was not executed, he filed Title Suit No. 90 of 1982 against them.

At the stage when the evidence was going on in Title Suit No. 23 of 1982, the petitioner filed an application u/s 151 of the CPC for staying further proceedings in the suit and trans-ferring the present suit to the Court of the Subordinate Judge, Sitamarhi, for hearing with Title Suit No. 90 of 1982. The aforesaid petition was rejected by the impugned order and hence the present revision application has been filed.

Mr. Ganesh Singh, learned Counsel for the petitioner, contended that on the facts and in the circumstances of the case, the Court below ought to have stayed the hearing of the suit pending decision in Title Suit No. 90 of 1982. He contended that if the case is not covered by Section 10 of the Code of Civil Procedure, then the Court should have acted u/s 151 of the CPC and either granted stay of the hearing of Title Suit No. 23 of 1982, or should have passed an order for transfer of the suit to the Court of the Subordinate Judge, Sitamarhi to be heard with Title Suit No. 90 of 1982. Mr. Yogendra Mishra, learned Counsel appearing on behalf of the opposite party, on the other hand, contended that hone of the prayers made on behalf of the petitioner can be allowed, and the order of the Court below does not call for any interference in revisional jurisdiction as the Court below has not committed any error of jurisdiction far less any material irregularity in exercise of its jurisdiction in passing the impugned order.

I may refer to the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, . In this case it appears that the suit at Indore was instituted later. The previous suit was filed in the Court at Asansol, and an application u/s 34 of the Arbitration Act was filed in the Asansol Court. The suit at Asansol Court was filed by the party who was appellant before the Supreme Court for recovery of certain amount on account of his share in the capital and assets of the partnership firm. The respondents in the Supreme Court appeal filed an application u/s 34 of the Arbitration Act in the Asansol Court praying for stay of the suit in view of the arbitration agreement in the original deed of partnership. This application was rejected. In the mean time, the respondent filed a suit in the Court of the District Judge, Indore against the appellant for a money decree. The respondent then applied in the Court at Asansol for stay of that suit in exercise of its inherent powers. The said application was rejected by the Subordinate Judge Asansol. The appellant then moved the Calcutta High Court in appeal. The High Court, Calcutta confirmed the said order. However, while confirming the order of rejection, the High Court directed that the preliminary issue regarding jurisdiction should be taken up by the Subordinate Judge as expeditiously as possible and the learned Subordinate Judge would take immediate steps in that direction. The appellant then applied to the Indore High Court for stay of that suit under. Sections 10 and 151 of the Code of Civil Procedure. The said application was opposed by the respondent. The application for stay was rejected. The position thus was that the proceedings in both the suits were to continue and the Asansol Court had been directed to hear the issue of jurisdiction at an early date.

It was in these circumstads, that the re-spondent filed an application u/s 151 of the CPC before the Indore Court for restraining the appellant to continue with the proceeding in the suit filed by him in the Court at Asansol, The said application was contested by the appellant. The Additional District Judge, Indore, issued interim injunction under Order XXXIX of the CPC to the appellant restraining him from proceeding with the Asansol suit pending decision of the Indore suit. The appellant went in appeal to the High Court of Judicature at Madhya Bharat. The High Court dismissed the appeal, though the learned Judges agreed with the contention that Order XXXIX, Rule 1 did not apply to the facts of the case, but under inherent powers of the Court u/s 151 an order of injunction could be issued. It is against this order that the appellant went to the Supreme Court by special leave.

Their Lordships of the Supreme Court allowed the appeal and while deciding the question as to whether the Court in the exercise of its inherent jurisdiction, exercised its discretion properly keeping in mind the facts of the case, noticed the decisions in McHenry v. Lewis (1882) 32 ChD 397 and the case of the Peruvian Gueno Co. v. Bockwoldt (1883) Ch D 225 and observed as follows :--

"...............If two actions are brought by the same plaintiff against the same defendant in England for the same cause of action, then as was said in McHenry v. Lewis (1882) 22 ChD 397, and the case of the Peruvial Guano Co. v. Bockwoldt (1883) 23 ChD 225, prima facie that is vexatious, and therefore the party who complains of such a multiplicity of actions has made out a prima facie case for the interference of the Court. Where there is an action by a plaintiff in England, and a cross-action by a defendant in England, whether the same prima facie case of vexation arises is a much more difficult point to decide, and I am not prepared to say that it does."

It has further been observed by their Lordships of the Supreme Court as follows:--

"It should be noticed that this question for an action being vexatious was being considered with respect to the subsequent action brought by the defendant in the previously instituted suit and when the restraint order was sought by the plaintiff of the earlier suit. In this case before us, it is the plaintiff of the subsequent suit who seeks to restrain the plaintiff of the earlier suit from proceeding with his suit. This cannot be justified on general principles when the previous suit has been instituted in a competent Court."

While dealing with Section 151 and Section 10 of the CPC their Lordships have held in para 39 of the judgment as follows:--

"39. The suit at Indore which had been instituted later, could be stayed in view of Section 10 of the Code. The provisions of that section are clear, definite and mandatory. A Court in which a subsequent suit has been filed is prokibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the CPC for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers u/s 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. It does not appear correct to say as has been said in Ram Bahadur Thakur and Co. Vs. Devidayal (Sales) Ltd., , that the Legislature did not contemplate the provisions of Section 10 to apply when the previously instituted suit be held to be instituted in those circumstances. The provisions of Section 35-A indicate that the Legislature was aware of false or vexatious claims or defences being made, in suits, and accordingly provided for compensatory costs. The Legislature could have there-tore provided for the non-application of the provisions of Section 10 in those circumstances, but it did not....................."

Learned Counsel for the petitioner, kowever, strongly relied upon a single Judge decision of this Court in the case of Chandra Shekhar Mandal v. Chun Chun Mandal 1978 BBCJ 132. That case is distinguishable on its own facts. It appears that the first suit (i.e. Money Suit No. 17 of 1969) was filed by the petitioners against the opposite party for recovery of damages for looting away the crops from the lands exclusively belonging to the petitioners. The subsequent suit was filed by the opposite party which was registered as Title Suit No. 56 of 1969, on the allegation that there was no partition as alleged by the petitioners and they were still joint. The Title Suit was dismissed and an appeal was filed against the order of dismissal of the suit, which was registered as First Appeal No. 620 of 1973. Thereafter the petitioners filed an application in Money Suit No. 17 of 1969 under Sections 10 and 151 of the CPC praying for stay of the hearing of the money suit. The prayer was rejected and the petitioners came up in revision before this Court which was allowed. The learned single Judge placed reliance upon a Bench decision of this Court in the case of Shaikh Mohammad Yasin v. Sheikh Md. Abdur Razzaque 1953 BLJR 460 : AIR 1954 Pat 10. That Bench decision shows that it was the latter suit which was stayed u/s 151 of the CPC on the ground that justice of the case requires that the latter suit should be stayed. The aforesaid Supreme Court decision, it appears, was not cited before the learned Single Judge, Be that as it may, the decision of the Hon''ble Judge staying the earlier suit is distinguishable on its own facts as already stated above, because it may be said that the decision in the first suit which was still pending would depend much upon the result of First Appeal No. 620 of 1973.

In the present case under consideration, it has already been pointed out that the first suit was filed in a court of competent jurisdiction and it has proceeded to the stage of taking evidence. The relief claimed in the two suits are different and, therefore, it cannot be said that the subject matter is the same in both the suits. The Supreme Court''s decision, discussed above, has pointed out that the restraint, order against the plaintiff of the earlier suit at the instance of the plaintiff of the subsequent suit cannot be justified on general principles when the previous suit has been instituted in a competent court. The previously instituted suit also cannot be said to be vexatious.

In view of the discussions made above, I do not find any merit in the submissions made by the learned Counsel for the petitioner. Accordingly, this application is dismissed, but without costs.