Bari Behera vs Debinarayan Das Choudhury

G.K. Misra, J.—Petitioner claims to be the bhag-tenant of the disputed land under the opposite party from the time of his forefathers. He

filed Bhag-chasi Case No. 1515/66 before the Revenue Officer, Jagatsinghpur, on 4-6-1966 for declaration of his bhag tenancy right under the

Orissa Land Reforms Act, 1960 (Orissa Act 16 of 1960), hereinafter referred to as the Act. The opposite party filed Title Suit No. 154/1906 in

the Court of the Munsif, Second Court, Cuttack, on 7-7-1966 for permanent injunction against the Defendant-Petitioner as a trespasser. The

Petitioner, after filing written statement, filed an application for stay of the Civil suit until disposal of the bhagchasi case. Against the order dismissing

the application for stay, the civil revision has been filed.

Mr. Patra advanced the following contentions:

(1) The Petitioner is entitled to the benefit of Section 11-A, Sub-section (2) of the Orissa Tenants Relief Act. 1955 (hereinafter referred to as the

relief Act), by virtue of the saving in Section 7-1(2)(d) the Act and the Civil suit is to be stayed until the disposal of the bhagchasi case;

(ii) Even if the first contention is not tenable, the Civil suit ought to be stayed u/s 151, Civil Procedure Code.

Both the contentions require careful examination.

Section 11-A, Sub-section (2) of the Relief Act runs thus:

Where a dispute of the nature specified in Sub-section (1) is raised or is pending before the Collector no proceedings relating to such dispute shall

be maintainable or be continued in any Civil Court and the decision of the Collector shall subject to the provisions of Sub-sections (4) and, (5) be

final.

The dispute referred to, in Sub-section (1) relates to relationship of landlord and tenant arising in the course of any of the proceedings under the

Relief Act. Sub-section (2) has now been construed to mean that if a dispute regarding the existence of relationship of landlord and tenant is either

raised or is pending before the Collector; a Civil suit regarding the identical subject-matter is to be stayed until the disposal of the proceeding

before the Collector-Bhima v. Venkateswara 33 (1967) C.L.T. 177. If this sub-section is still in force, Petitioner''s contention must be upheld and

the Civil suit is to be stayed.

Section 74 of the Orissa Land Reforms Act, 1960 so far as relevant, runs thus:

(1) On the coming into force of Chapter I of this Act the Orissa Tenants'' Relief Act, 1955, shall be repealed.

(2) The repeal under Sub-section (1) shall not affect:

(a) ... ... ...

(b)... ... ...

(c)... ... ...

(d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty forfeiture or punishment as

aforesaid; any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or

punishment may be imposed as if this Act had not been passed.

Chapter I of the Act came into force on 1-10-1965. Thus by the time the Bhagchasi case and the Civil suit were filed, the Relief Act bad been

repealed and was no longer in force.

Mr. Patra, however, contended that the benefit u/s 11-A, Sub-section (2) of the Relief Act is still available to the Petitioner by virtue of the savings

made In Section 74(2)(d) of the Act. Emphasis is laid on the expression ""remedy in respect of any such right, privilege, obligation"". In our view, the

provision regarding stay of suit is not a remedy in respect of any right, privilege or obligation. We accordingly bold that the relief u/s 11-A(2) of the

Relief Act is not saved by Section 74(2)(d) of the Act. This contention must accordingly fail.

The next contention is whether the Civil suit is to be stayed u/s 151, Civil Procedure Code. It says that 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 necessarily for the ends of justice or to prevent abuse of

the process of the Court. On the plain language of the section, the Court has undoubted power to stay the Civil suit there being no specific

provision in the Code prohibiting it. The powers cannot, however, be exercised as a matter of course. The Court must exercise its judicial

discretion in the facts and circumstances of each case. It is now well settled that the inherent powers of the Court being very wide and the powers

being in addition to the powers specifically conferred on the Court by the Code are to be very carefully exercised. It would not be exercised in an

arbitrary and capricious manner.

The question for consideration is whether in the facts and circumstances of this case, such powers should be exercised. It is not possible to say at

this stage whether the case of the Petitioner is true. 1 the Petitioner is a trespasser, there is no justification is not allowing the opposite party to get

speedier remedy through the Civil Court. 10 the absence of specific provision in the Act corresponding to Section 11-A of the Relief Act, there is

no particular reason why Section 151, Civil procedure Code, should be invoked for granting stay of the Civil Suit, unless special reasons are made

out. Our view is fully supported by Baso Beldar and Others Vs. Parmeshwar Narayan Singh and Others, , In that case, a rent suit was pending in

the Civil Court. A proceeding u/s 40 of the Bihar Tenancy Act for commutation of rent was pending before the Revenue Court in respect of the

very land in suit. A prayer for the stay of the Civil suit was made. Their Lordships observed that though it was open to the tenant to make an

application for commutation of rent u/s 40 of the Bihar Tenancy Act, and if that application was allowed, it was within the discretion of the

Revenue Officer to direct as to the period from which commutation was to take effect, there is no reason why the landlord, who had instituted the

suit for rent, because of the tenant''s failure to divide the produce as required by law, should be compelled to wait until Section 40 proceedings

were decided.

Mr. Patra cited Vishnu Das v. D. Krishnakumar AIR 1953 Hyd. 144. and Partap Krishna Vs. Sterling General Insurance Co. Ltd., in support of

his contention that stay should be granted u/s 151, CPC Both these cases are distinguishable in the first case, the Rent Controller bad already fixed

a fair rent and an appeal against the order was pending. The suit was before the Small Cause Court for recovery of rent by the land. As the

proceeding for fixation of fair rent was at a fairly advanced stage, the suit before the Small Cause Court was stayed as the ultimate result therein

would depend upon the fixation of fair rent. Thus the relief to be granted in the Civil suit was interlinked with the relief to be granted by the

appellate Court against the order of the Rent Controller. In the second case, the Plaintiff brought a Civil suit for recovery of certain amount and

80180 claimed the same amount under the Displaced Persons Debt Adjustment Act before the Officer under the special statute. In the

circumstances, stay was rightly granted u/s 151, Civil Procedure Code, in respect of the suit as for the identical relief the Plaintiff is not to be

allowed to resort to different forums simultaneously.

As has been said, the Court has set power to grant stay u/s 151, Civil Procedure Code. But whether stay would be granted in the particular case

would depend upon the facts and circumstances of that case. No bard and fast rule can be laid down. For reasons already discussed, no case is

made out for grant of stay in this case,

In the result, the civil revision fail and is dismissed with costs. Hearing fee of Rs. 50/.

Patra, J.

I agree.