Laxman Sharma vs Balrum Sharma and Others

S. Chandrashekhar, J.—Aggrieved by order dated 14.6.2011 in Eviction Suit No. 112 of 1997, the present writ petition has been tiled. It is stated that initially the suit being Title Suit No. 170 of 1997 was filed by the respondent No. 1. The defendant (petitioner herein) is the full brother of the plaintiff. The plaintiff claimed that his father has executed gift-deed in his favour and thus, he became owner of the property in question. The Title Suit No. 170 of 1997 was converted into an eviction suit bearing Eviction Suit No. 112 of 1997. Subsequently, vide order dated 19.1.2001, the plaintiff was again permitted to convert the eviction suit into a title suit however, the plaintiff did not take any step in the matter for correction in the cause title and amendment in the plaint. The defendant (petitioner herein) has also preferred Title Suit No. 94 of 1999 and he preferred an application for analogous hearing of both suits which was dismissed by the Trial Court vide order dated 15.9.2005. The petitioner approached this Court in W.P.(C) No. 6239 of 2005 which was dismissed on the ground that both suits are different in nature and therefore, cannot be heard together. The petitioner again moved an application for examination of the signature of his father on the alleged gift-deed and the said application was also dismissed by the Trial Court against which the petitioner came to this Court by filing W.P.(C) No. 1547 of 2009. The said writ petition was dismissed vide order dated 17.8.2010 taking note of order dated 17.2.2006 in W.P.(C) No. 6239 of 2005 however, it was ordered that both the suits would be tried one after another.

The learned counsel for the petitioner submits that in the aforesaid facts, the petitioner preferred application dated 18.12.2010 for dismissal of Eviction Suit No. 112 of 1997 however, the said application has erroneously been dismissed vide order dated 14.6.2011. It is submitted that the Trial Court in the impugned order dated 14.6.2011 recorded a finding that no material establishing landlord-tenant relationship has been brought on record and once such finding has been recorded by the Court itself, in exercise of power under Section 151 CPC, the Trial Court was under a duty to dismiss the suit. Relying on a judgment in Temple of Thakur Shri Mathuradassji Vs. Shri Kanhaiyalal and Others, (2008) 2 RLW 1390 , the learned counsel for the petitioner submits that even though application dated 18.12.2010 was filed under Section 151 CPC, the Court has power to pass order dismissing the suit.

As against the above, Mr. P.A.S. Pati, the learned counsel appearing for the respondent No. 1-plaintiff submits that there is a specific provision under Order VII, Rule 11 C.P.C. which provides for rejection of plaint and therefore, the application filed under Section 151 C.P.C. was not maintainable. Since, there is specific provision under the Code of Civil Procedure for dismissal of suit, the Trial Court has rightly not exercised power under Section 151 C.P.C.

From the materials brought on record, it appears that vide order dated 19.1.2001 the Trial Court permitted the plaintiff to convert the Eviction Suit No. 112 of 1997 into a title suit. This order was never challenged by the defendant and it attained finality. Though, the petitioner did not take necessary steps for amending the plaint however, the fact remains that the Court in seisin of the suit filed by the plaintiff has to decide the claim of the plaintiff with respect to the suit scheduled property in reference to the gift-deed executed by his father. The contention of the learned counsel for the petitioner that the Trial Court has recorded that "from bare reading of the plaint, it appears that in the plaint it is nowhere mentioned that there is relationship of landlord and tenant between the parties" and therefore, the Trial Court should have dismissed the eviction suit on this ground alone, does not merit acceptance. The observation of the Trial Court in impugned order dated 14.6.2011 is only a tentative observation and it cannot be construed as the final determination in so far as, the landlord-tenant relationship between the parties is concerned. Although in the title suit there cannot be an occasion for deciding the said issue, even if it is assumed that the suit filed by the plaintiff has remained an eviction suit only, the issue of landlord-tenant relationship has to be decided by the Court. It does not appear from the impugned order dated 14.6.2011 that the defendant led evidence in support of his claim that there is no landlord-tenant relationship between the parties. Further, the defendant has taken a plea that the gift-deed is forged and fabricated document and therefore, I am of the definite opinion that the Trial Court could not have arrived at a conclusive finding that there was no landlord-tenant relationship between the parties. Further, in view of order dated 1.5.2001 whereby, the eviction suit has been permitted to be converted into a title suit, the observation of the Trial Court is of no consequence. It is well-settled that if there is a specific provision in the Code of Civil Procedure which lays down a procedure for dismissal of suit, the Trial Court cannot exercise power under Section 151 C.P.C. for dismissing the suit. The power under Section 151 C.P.C. is the inherent power of the Court which can be exercised only for preventing abuse of the process of law and for avoiding miscarriage of justice. In Shipping Corporation of India Ltd. Vs. Machado Brothers and Others, AIR 2004 SC 2093 : (2004) 98 CLT 98 : (2004) 4 JT 25 : (2004) 1 JT 528 Supp : (2004) 138 PLR 301 : (2004) 4 SCALE 39 : (2004) 11 SCC 168 : (2004) 3 SCR 584 : (2004) AIRSCW 1842 : (2004) AIRSCW 7327 : (2004) 8 Supreme 290 , the Hon''ble Supreme Court has observed as under:--

"20. ......... it is clear that if there is no specific provision which prohibits the grant of relief sought in an application filed under Section 151 of the Code, the courts have all the necessary powers under Section 151 C.P.C. to make a suitable order to prevent the abuse of the process of court. Therefore, the court exercising the power under Section 151 C.P.C. first has to consider whether exercise of such power is expressly prohibited by any other provisions of the Code and if there is no such prohibition then the court will consider whether such power should be exercised or not on the basis of facts mentioned in the application."

In Vinod Seth Vs. Devinder Bajaj and Another, (2010) 8 JT 66 : (2010) 8 SCC 1 : (2010) 7 UJ 3489 , the Hon''ble Supreme Court has observed as under:--

"28. As the provisions of the Code are not exhaustive, Section 151 is intended to apply where the Code does not cover any particular procedural aspect, and interests of justice require the exercise of power to cover a particular situation. Section 151 is not a provision of law conferring power to grant any kind of substantive relief. It is a procedural provision saving the inherent power of the court to make such orders as may be necessary for the ends of justice and to prevent abuse of the process of the court. It cannot be invoked with reference to a matter which is covered by a specific provision in the Code. It cannot be exercised in conflict with the general scheme and intent of the Code. It cannot be used either to create or recognize rights, or to create liabilities and obligations not contemplated by any law."

The judgment in "Temple of Thakur Shri Mathuradassji, Chhota Bhanda" case has been delivered in the peculiar facts of the case and it does not lend support to the case of the petitioner. The application filed by the petitioner is not only misconceived, it is completely incoherent and inconsistent. There is no allegation that the eviction suit is frivolous. In the result, the writ petition is dismissed. Accordingly, I.A. No. 1364 of 2014 also stands disposed of.