Mohammad Ismail vs Sakina Begum

Jaganmohan Reddy, J.—In this revision the only point that has been pressed is that the Small Causes Court ought to have stayed the suit and not passed a decree when it was brought to its notice that an application for fixation of fair rent was pending before the Rent Controller. The lower court rejected the contention of the applicant on the ground that, since it was admitted by the Petitioner that rent was due for sixteen months from July, 1950 to October, 1951, there was no necessity to await the decision of the Rent Controller. The Petitioner had taken the leased premises from the Respondent on a rent of Rs. 45/- per month with respect to which he had, after the suit was filed in the Small Causes Court, applied to the Rent Controller for fixation of fair rent. The learned Advocate for the revision-Petitioner argues on the authority of Dulhanmal Rizumal v. Abdul Kadar AIR 1950 MP 8 that the Small Causes Court ought to have stayed the suit. In the aforesaid case it was decided that in a suit for recovery of rent in which the quantum of rent recoverable by the landlord is in contest and

where a special tribunal is created for the determination of the question the jurisdiction of Civil Courts must be deemed to have been taken away protan to, while such tribunal exists; and as the determination of this question is not within the jurisdiction of the Civil Court, there cannot be a formal expression of an adjudication which so far as the court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.

This judgment was followed by my learned brother Dr. Siadat Ali Khan in an unreported judgment in the case of Mohd. Fakruddin v. Syed Roshan Ali Revn. Petn. No. 125/4 of 1951 dated the 5th October, 1951 in which he directed the Small Causes Court to write and enforce the judgment after a reasonable rent is fixed by the Rent Controller. As against this judgment there is a judgment of the Patna High Court in P. C. Gangulee v. Smt. Kadhuri Devi 6 Dom LR (Pat) 167, where it was held that there is no warrant for the proposition that because a proceeding for the fixation of fair rent is pending before the Controller, the suit pending before the Munsif for arrears of rent should be stayed.

It may here be pointed out that u/s 6 of the Hyderabad Rent Control Order any claim for difference due to the tenant after fixation of fair rent can be enforced as against the landlord, either by adjustment by the landlord according to the tenant''s will or by a claim for the payment of the excess paid to him in accordance with the fair rent fixed. There is, in my view, a great difference in proceedings under the Rent Control Order for fixation of fair rent and a suit in a Civil Court of competent jurisdiction for recovery of rent due. The Rent Controller has no jurisdiction to give a rent decree. That is the function of the Civil Court. In these circumstances, there appears to be no valid) (SIC)for staying the proceedings of a Civil Court until adjudication by rent control tribunal, The proceedings for fixation of fair rent before the Rent Controller are therefore, not covered by the provisions'' of Section 10 of the Code of civil Procedure. Although "Court" has not been defined in the CPC and might include a tribunal such us is constituted, under the Rent Control Law, yet before (SIC)can be stayed u/s 10 of the Code Of Civil Procedure, the subject-matter of the suit which is being adjudicated, the relief prayed for, and the power to grant it must substantially be the same in the proceedings before the Rent Controller and the suit in. the Small Causes Court. Further, the suit which is sought to be stayed must be filed in the same court, or in any other court in India having jurisdiction to grant the relief before it can be stayed under the said section. The section also does not apply, to a case where one of the two proceedings is not a suit. In Grahams Trading Co. (SIC) Ltd. v. Chandulal Parmanand AIR 1935 Sind 228 at pg. 231, where objections to an award were preferred in a court, it was held that no application u/s 10 of. the CPC for stay of proceedings lies on the ground that a suit in respect of the same subject-matter has been instituted in another court by the applicant.

The principle upon which a subsequent suit is'' stayed u/s 10 of the CPC (corresponding to Section 12 of the Code of Civil Procedure, 1877) is, as observed by Mahmood J. in the case of -

Balkishan v. Kishan Lai 11 All 148 as follows:

The object of the rule contained in Section 12 of the Code is to prevent courts of concurrent jurisdiction from, simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the. same subject-matter and the same relief. The policy of the law is to confine the plain tiff to one litigation, thus obviating the possibility of contradictory verdicts by two or more courts in respect of ''the same relief.

It may be observed here that u/s 12 )of the old Code it was essential that both the ;suits should have prayed for the same relief. Though, u/s 10 pf the present Code identity of relief claimed for is not now necessary, still'' it is necessary that the entire subject matter of the two suits should be the (SIC)Even if the proceedings before the Rent Controller can be deemed to be a suit it can to be said that the subject-matter of the proceedings before the Rent Controller is before he came court or any other court in India having Jurisdiction to grant the relief claimed, (SIC)the Rent Controller has no power under the Rent Control Law to grant a decree or rent All that the Rent Controller can do to fix a fair rent and leave it to the tenant there to have the excess adjusted or claim the suit. In these circumstances, 4 Suit can be stayed under See. 10 of the order Civil Procedure. The cases cited by (SIC) In Dulhanmal Rizumal v. Abdur(SIC) AIR 1950 MP 8. are with respect (SIC)a case where either the suit could have been (SIC) u/s 10 of the CPC or where the High Court in exe(SIC)sse of its inherent powers u/s 151 the CPC stayed the suit before the proceedings in the lower court con(SIC) in a decree.

In the Madhya Bharat case cited above Dulhanmal Rizumal. v. Abdul Kadar AIR 1950 MP 8 the applications were made to the Rent Controller prior to the institution of the suit for the agreed rent. In the Patna case P. C. Gangulee v. Smt. Kadhuri Devi 6 Dom LR 167 the suit was filed after proceedings for eviction had been commenced and on the same day the application for fair rent was presented before the Rent Controller appears to me that there is a distinction between a case where the proceedings before the Rent Controller for fixation of fair rent were taken after a suit was filed and a case where the suit was filed after the fair rent proceedings were already pending before the Rent Control Tribunal Rege J. in the Madhya Bharat case has made it clear that where another tribunal was seized of the matter prior to the institution of the rent suit it should have been stayed pending the determination of the fair rent. The Ratio Decidendi in both the cases was not based on a consideration of Section 10 of the CPC but appears to have been grounded in the Court''s inherent power to stay a suit if the ends of justice required it. Even on that basis, in my view, if the tenant allowed "arrears of rent to accrue for such a considerable time as to force the landlord to have recourse to a suit for the recovery thereof, he cannot, after the suit is filed, invoke the inherent power of the Court by asking for a stay on the ground that he has filed an application for ''fixation of fair rent before the Rent Controller.

In this case, after the suit was filed on 3th November 1951, in the Small Causes Court, the applicant filed a petition for fair rent to be fixed before the Rent Controller on 20th December 1951. There is, in my view, no justification for allowing the Petitioner to utilise his own laches to the disadvantage of the Respondent by putting him to unnecessary expense and then asking the court to exercise its inherent power u/s 151 of the CPC as being necessary for the ends of justice.

In any case, after a decree has been, granted, there is no valid reason for setting it aside, merely on the ground that the suit was not stayed. It would have been perhaps a different matter had a revision been filed immediately after the lower court refused to stay the suit, in which case having regard to the facts in each case, it may be considered in the interests of justice to stay the sait in exercise of the inherent powers u/s 151 of the Code of Civil Procedure; but that is not the case here.

In the result, the revision is dismissed with costs.