Raj Kumar @ Rinku v. Smt.Sumitra Devi

Constitution of India has been filed by the defendant- petitioner against the order dated 19.09.2011 passed by Munsif IIIrd, Patna in eviction suit NO.23 of 2010 whereby the Court below rejected the application filed by the petitioner under Section 151 of the Code of Civil Procedure to stay further proceeding in eviction suit No.23 of 2010 during the pendency of the First Appeal No.273 of 1994. The learned counsel the petitioner submitted that the petitioner was a tenant under the erstwhile owner of the property and the plaintiff- respondent has purchased the subject matter of the suit in the year 1992. According to the learned counsel, title suit No.32 of 1990 was filed by Jai Prakash Gupta & Anr. against original landlord Bhutnath Prasad and Ors. and also against present plaintiff-respondent. The said suit has been partly allowed. Against that First Appeal No.273 of 1994 is pending before this Court and, therefore, the petitioner filed the application under Section 151 of C.P.C. for stay of further proceeding of - 2 - eviction suit during the pendency of the Firs Appeal but learned Court below has rejected the stay application without considering the facts of the case.

On the other hand, the learned counsel, Mr. Rajendra Prasad Singh appearing on behalf of the plaintiff-respondent submitted that in the suit, the tenant is not a party nor he is a party in the appeal. The tenant is not claiming independent title on the suit property and when there is specific provision under Section 10 of the C.P.C. for stay of suit the Court cannot exercise inherent jurisdiction under Section 151 C.P.C. to stay the further proceeding of a suit if the ingredients of Section 10 is not attracted. Admittedly, the suit earlier filed by another person is a suit for specific performance of contract. In the suit the petitioner is not a party. The present suit has been filed under Bihar Building (Lease, Rent, Eviction) Control, Act, 1982. Therefore, the question to be decided in the present suit as to whether their exist relationship of landlord and tenant between the petitioner and the plaintiff-respondent.

So far this issue is concerned, it is not a matter which was decided by the trial Court in earlier suit No.32 of 1990 or it is involved in the First Appeal No.273 of 1994 and, therefore, it cannot be said that issues previously decided in the trial of the suit or yet to be decided in the First Appeal is substantial and directly in issue in - 3 - the present suit, i.e., eviction suit No.23 of 2010. It is well settled principle of law that when there is specific provision under the Code of Civil Procedure and if the relevant ingredients are not applicable for attraction of the said specific provision, the Court cannot resort to Section 151 C.P.C. for stay of the further proceeding of the suit. Moreover as stated above, this is an eviction suit and the tenant cannot insist the Court to stay the further proceeding of the eviction suit during the pendency of the First Appeal where he is not a party.