1. Order no. 86 dated December 3, 2010 passed by the learned Judge, 4th Bench, City Civil Court at Calcutta rejecting the petition of the defendant/petitioner (hereafter Delta) under Section 10 of the Code of Civil Procedure (hereafter the Code) read with Section 151 thereof (hereafter the said petition) for stay of further trial of T.S. No.719 of 1999 is under challenge in this application under Article 227 of the Constitution.
2. T.S. No. 719 of 1999, instituted in April, 1999 (the day of institution is in dispute but not relevant for a decision here) by the plaintiff/opposite party (hereafter Mallika) is a suit for recovery of arrear rents from Delta in a sum of Rs. 5,17,000/- as well as for mandatory injunction on Delta to pay and liquidate to the Kolkata Municipal Corporation and other appropriate authorities all arrear dues of municipal rates and taxes and other impositions over and in respect of the suit premises bearing Nos.4A, 4B and 4D, Council House Street, Police Station-Hare Street, Kolkata 700001.
3. The said petition, on which the order under challenge has been passed, was preceded by an application filed by Delta before this Court in its extraordinary ordinary civil jurisdiction under clause 13 of the Letters Patent, registered as ALP No.69 of 2009. Therein, Delta had contended that it had instituted C.S. No.418 of 1999 before this Court on July 21, 1999 wherein the first and the second defendants were one Ansuman Mallick (hereafter Ansuman) and Mallika respectively. Relief sought for therein were: decree declaring that Delta is a monthly tenant under Ansuman in respect of the suit premises bearing Nos.4A, 4B and 4D, Council House Street, Police Station - Hare Street, Kolkata 700001; alternatively, decree declaring that Delta is a monthly tenant under Mallika in respect of the said suit premises; decree of perpetual injunction restraining Ansuman and Mallika from interfering with Deltas peaceful and quiet possession and occupation of the suit premises; and decree of perpetual injunction restraining Ansuman and Mallika from compromising C.S. No.211 of 1998 (another suit pending before this Court where Ansuman and Mallika are plaintiff and defendant respectively).
4. The application was dismissed by a learned Judge of this Court by order dated July 21, 2010, relevant portion whereof reads as follows :
The principal ground urged on behalf of the petitioner herein is that the primary issue which falls for consideration in the City Civil Court suit is also directly and substantially in issue in the suits which remain pending in this Court. Assuming for the moment that the petitioner is right in such assertion, the effect of the City Civil Court suit being decided would be that such issue would have been concluded as between the petitioner and the second respondent and may not be agitated again. Rather than the conclusion of the City Civil Court throwing up any inconvenient situation, the decision in the City Civil Court suit may, effectively, conclude the relevant issue between the petitioner and the second respondent as to whether the petitioner is a tenant under the second respondent.
Since the City Civil Court suit is at an advanced stage and that evidence is being received and since the early disposal of the City Civil Court suit may result in a substantial issue in the suits pending in the Court being concluded, it is eminently desirable that the City Civil Court suit should be proceeded with expeditiously. ALP 69 of 2009 is disposed of by directing the City Civil Court to dispose of Title Suit No.719 of 1999 with utmost expedition and without affording the parties any unnecessary adjounrment. It is desirable that such suit should be concluded within a period of two months from the date of deposit of an authenticated copy of this order in the relevant court.
5. The said order was carried in appeal by Delta. By order dated August 17, 2010, the appellate court dismissed the appeal by passing, inter alia, the following order :
We have considered the facts of the case. It appears that Mr. Saha tried to contend before us that it will affect the right of the appellant in the suit, but after going through such observation made by the Honble First Court, we do not find that it can create any problem in respect of the suits pending before this Court, because such observation has been made only in relation to transfer of a suit under Clause-13 of the Letters Patent. The suit will be decided by the Court after framing issues on the basis of the pleadings and thereafter the suit will be decided by the Court.
Therefore, we do not find that there is any illegality and/or irregularity in respect of the observation made by the Honble First Court and further in our opinion the question of maintainability of this appeal has already been decided by the Court on many occasions and appeal is barred from refusal of Clause-13 of the Letters Patent. However, since we have dealt with the matter in question, we refrain ourselves to make any further observation to that extent.
We, therefore, dismiss the appeal, without any order as to costs. For the aforesaid reasons, the stay application is also dismissed.
6. Delta, in the said petition, prayed as follows:
In the circumstances the defendant/petitioner humbly prays that your Honour may graciously be pleased to stay the hearing of argument of the instant suit till the C.S. No.218 of 1999 and C.S. No.418 of 1999 is heard and disposed of by the Honble High Court in order to avoid conflict of judgement and for the ends of justice and to pass such other or further order or orders as Your Honour deems fit and proper.
7. The said petition was rejected by the learned Judge with costs of Rs. 500/- on the sole ground of subsistence of the order dated July 21, 2010, since confirmed in appeal, whereby the suit had been directed to be disposed of expeditiously. No other point, however, was adverted to.
8. Mr. Roy Chowdhury, learned senior counsel for Delta contended that even though this Court by order dated July 10, 2010 had directed expeditious disposal of T.S. No.719 of 1999 by fixing a particular time-frame, that by itself could not have been a ground for rejecting the said petition if indeed Delta had set up a valid case for stay of T.S. No.719 of 1999. According to him, this Court could not have contemplated, while dismissing the prayer for leave under clause 13 of the Letters Patent that Delta could urge the trial Court to stay its own proceeding in exercise of its inherent power to do justice between the parties, - a course of action that is permissible in law, and, therefore, the trial Court was clearly in error in dismissing the said petition on the basis of the order dated July 10, 2010, passed by this Court. He further submitted that the trial Court failed to appreciate that it was a fit case where the suit ought to have been stayed not in exercise of power conferred by Section 10 of the Code but in exercise of its inherent power preserved by Section 151 thereof.
9. Reliance was placed by Mr. Roy Chowdhury on the Bench decision of this Court in Atula Bala Dasi vs. Nirupama Devi, reported in AIR 1951 Cal 561 wherein it was held that a Court can stay its own proceedings to do justice in exercise of its inherent power and the power to stay a suit is not necessarily confined to situations to which Section 10 of the Code might apply.
10. Mr. Mitra, learned senior counsel representing Mallika contended that the trial Court was justified in dismissing the said petition since provisions contained in Section 10 of the Code dealing with the power of a Court to stay a suit pending before it were not attracted. According to him, Mallikas suit (T.S. No.719 of 1999) is prior in point of time to C.S. No.419 of 2009 and, therefore, could not have been stayed by the trial Court in terms of power conferred by Section 10. He further submitted that a Court could stay a suit pending before it in exercise of its inherent power only in very exceptional circumstances and not as a matter of course. No such exceptional case was made out and particularly having regard to the fact that Deltas prayer for transfer of T.S. No.719 of 1999 had been rejected, the trial Court possibly had no other option open but to dismiss the said petition. In the circumstances, the trail Court did not act illegally in the exercise of its jurisdiction and, therefore, this application calls for no interference.
11. I have heard learned senior counsel for the parties and perused the materials on record.
12. In Atula Bala Dasi (supra), it has been held as follows:
It is now well settled that a Court has jurisdiction to postpone the hearing of a suit which is pending before that court. The grounds for such postponement may be as under S. 10 Civil P.C., or, even when the grounds cannot be brought within the four corners of that section the Court has an inherent power of staying its own proceedings. Such inherent power to postpone the hearing of a suit, pending the decision of a selected action, may be founded on grounds of convenience. Such inherent power, is to be exercised to facilitate that real & substantial justice is done.
13. Any discussion on the point of extent of power that could be exercised by a Court under Section 151 of the Code would be incomplete without reference to the decision of the Supreme Court in Manohar Lal Chopra v. Seth Hiralal, reported in AIR 1962 SC 527. Manohar Lal and Seth Hiralal were carrying on business in partnership. Manohar Lal filed a suit in 1948 in the Court of the sub- judge at Asansol for recovery of Rs. 1 lakh on account of share in the capital as well as in the assets of the partnership firm. Subsequently, Seth Hiralal filed a suit in the year 1949 in the Court of the District Judge, Indore, for a sum of Rs.1.90 lakh and odd against Manohar Lal and further interest on the footing of settled accounts and in the alternative for a direction to Manohar Lal to render true and full accounts of the partnership. The Court at Asansol was approached by Seth Hiralal praying for stay of that suit in exercise of its inherent powers. The prayer for stay was rejected on the ground that the suit at Asansol having been instituted earlier than the suit at Indore, there was no scope for exercising power under Section 151 of the Code and Section 10 thereof also had no application to the suit. The order was confirmed by the High Court. These circumstances in the background, the Indore Court was approached with an application to restrain Manohar Lal from continuing the proceedings in the suit filed by him at Asansol on the plea that such suit was vexatious. The District Court granted interim injunction and on appeal, the High Court of Judicature at Madhya Bharat upheld the said order. It was held that the order of injunction could be issued in exercise of the inherent powers of the Court under Section 151 of the Code. Manohar Lal preferred an appeal to the Supreme Court from this order of dismissal of appeal. In this context, the first question that arose was whether the Court had inherent powers to grant injunction under Section 151 when Section 94 and Order 39 of the Code specifically provided for granting of injunctions. The second question was whether the Court, in exercise of its inherent jurisdiction, exercised its discretion properly, keeping in mind the facts of the case. The majority speaking through Honble Raghubar Dayal, J. (as His Lordship then was) while answering the first question ruled as follows :
23.****These observations have no bearing on the question of the Courts exercising its inherent powers under Section 151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it.
In course of giving answer to the second question, it was, inter alia, observed as under :
27. The inherent powers are to be exercised by the Court in very exceptional circumstances, for which the Code lays down no procedure.
28. The question of issuing an order to a party restraining him from proceeding with any other suit in a regularly constituted court of law deserves great care and consideration and such an order is not to be made unless absolutely essential for the ends of justice.
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 prohibited from proceeding with the trial of that suit in certain specified circumstances. When there is a special provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the inherent powers under Section 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 v. Devidayal Ltd. (AIR 1954 Bom 176) 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 therefore provided for the non-application of the provisions of Section 10 in those circumstances, but it did not. Further, Section 22 of the Code provides for the transfer of a suit to another court when a suit which could be instituted in any one of two or more courts is instituted in one of such courts. In view of the provisions of this section, it was open to the respondent to apply for the transfer of the suit at Asansol to the Indore Court and, if the suit had been transferred to the Indore Court, the two suits could have been tried together. It is clear, therefore, that the legislature had contemplated the contingency of two suits with respect to similar reliefs being instituted and of the institution of a suit in one Court when it could also be instituted in another Court and it be preferable, for certain reasons, that the suit be tried in that other Court.
It was ultimately held by the Court that the order under appeal could not be sustained for it was not an order necessary in the interest of justice or to prevent the abuse of the process of Court.
14. There could be diverse situations not controlled by the provisions of the Code where a Court may consider it absolutely necessary to stay any proceeding pending before it for doing justice between the parties in exercise of its inherent powers. The decision in Manohar Lal (supra) does not, in my humble understanding of the ratio decidendi thereof, lay down that in specific situations, which are not covered by Section 10, power under Section 151 may not be exercised for ordering an injunction, thereby restraining a party from proceeding with his/its suit. The declaration of law therein does not also have the effect of eroding the precedential value of the decision in Atula Bala Dasi (supra) but in a case of the present nature where two suits involving similar issues are pending, the guidance derived from paragraph 39 of the decision in Manohar Lal (supra) is that the proper and just course that could be adopted is to ensure trial of the suits together for avoiding conflict of decision, apart from wasting time and energy. Unfortunately, the learned Judge of the trial Court could not have directed so. However, in view of the above pronouncement, which was rendered on facts although not exactly the same but not too dissimilar either with the facts of the present case, it now requires consideration as to whether exceptional circumstances did exist for exercise of inherent powers under Section 151 of the Code or not for ordering stay of T.S. 719 of 1999.
15. From the materials on record, I have noted that apart from T.S. No.719 of 1999 and C.S. No.418 of 1999, there are two other civil suits pending on the file of this Court being C.S. No.211 of 1998 (suit of Ansuman seeking eviction of Mallika from the suit property being Nos.4A, 4B and 4D, Council House Street, Police Station - Hare Street, Kolkata 700001) and C.S. No.218 of 1998 (suit instituted by Delta against Ansuman for specific performance of agreement between them for lease of the selfsame suit premises to Delta).
16. The suit property in all the four suits being the same and keeping in mind the prayers made by Delta in its suit being C.S. No.418 of 1999 as noticed above, it would have been ideal if T.S. No.719 of 1999, C.S. No.418 of 1999 and the other two suits, subject to the parties agreeing, were to be tried together. If T.S. No.719 of 1999 is ultimately dismissed, it may not pose any serious problem. Further, if C.S. No.418 of 1999 is decided before the other suits and Delta ultimately obtains a decree of declaration that it is a tenant under Ansuman, question of payment of rent by Delta to Mallika would not arise and no relief as prayed for by Mallika in T.S. No.719 of 1999 could be granted on principles of res judicata. Also, in the event Ansuman is not declared to be Deltas landlord and the alternative prayer of Delta is granted i.e. it is a tenant under Mallika, there would be no problem in deciding the issues that have been framed for decision in T.S. No.719 of 1999. However, there could be likelihood of conflict of decision if the suit filed by Mallika against Delta (T.S. No.719 of 1999) succeeds but sometime later, C.S. No.418 of 1999 is either decreed in terms of the main prayer declaring that Delta is a tenant under Ansuman or the suit itself is dismissed meaning thereby that Delta is neither a tenant of Ansuman nor of Mallika. Finally, it cannot be lost sight of that whatever be the decision in T.S. No.719 of 1999, such decision would not be binding on Ansuman who is not a party there.
17. The possibility as indicated above cannot be ruled out and if at all it happens, the parties would be placed in an uncertain position. This Court in its order dated July 21, 2010, however, observed that the effect of the decision in T.S. No.719 of 1999 would be that the issue raised therein would conclude the controversy between Delta and Mallika and that may not be agitated again. The Court was of the further view that conclusion of the City Civil Court on T.S. No.719 of 1999 instead of throwing up any inconvenient situation would effectively conclude the relevant issue between Delta and Mallika as to whether the former is a tenant under the latter or not. This order (despite no appeal being maintainable in law), has been confirmed by the Division Bench on merits too. In my humble opinion, it is premature to hold that if the relevant issue between Delta and Mallika is concluded, that is not likely to give rise to any anomalous or inconvenient situation. Dehors the orders dated July 21, 2010 and August 17, 2010, it could be accepted that exceptional circumstances did exist calling for interference.
18. However, sitting in co-ordinate jurisdiction, it is well-nigh impermissible for me to differ with the view expressed in the order dated July 21, 2010, since confirmed in appeal, and to return a contra-finding that Deltas apprehension of the decision of the City Civil Court throwing up an inconvenient situation is justified. Judicial propriety and discipline demands that the position that has since emerged after dismissal of Deltas application under clause 13 is not disturbed.
19. For the reasons aforesaid, I do not find any reason to interfere with the impugned order although I may hasten to add that the learned Judge of the trial Court could not have, in the circumstances, dared to ignore the binding direction of this Court in the order dated July 21, 2010 to conclude the suit within two months from date of receipt thereof.
20. The application stands dismissed without order for costs.
21. Urgent photostat certified copy of the order, if applied for, be given to the parties at an early date.