High Court · 2012

This application under Article 227 of the Constitution of India, seeking issuanc e of a writ in the nature of certiorari and/or any other appropriate writ, order or direction has been filed in respect of the order dated 29.8.2011 passed by t he learned Munsiff No. 2, Jorhat in Misc. (J) Case No. 27/2011 arising out of T. S. No. 24/2008, by which the prayer of the defendant in the suit to stay the pro ceeding in the suit has been rejected.

2. The respondent herein as the plaintiff has instituted the Title Suit bei ng T.S. No. 24/2008 against the petitioner as the defendant for recovery of khas and vacant possession of the suit room and also for recovery of arrear compensa tion of Rs. 48,000/-. In paragraph 4, 5 and 11, of the plaint, it has been state d thus: (cid:28)4. That as per terms of the agreement the monthly rent of the suit room was fix ed at Rs. 4,000/- (rupees four thousand) only out of which Rs. 3,000/- (rupees t hree thousand) only be the clear rent and Rs. 1,000/- (rupees one thousand) only be the service charge for maintenance of the property. It is also agreed that b esides paying the rent as stipulated, the defendant is also liable to pay a sum of Rs. 489/- (rupees four hundred eighty nine) only per month to the plaintiff f or payment of Service Tax with effect from June, 2007. The rent is payable in ad vance within 10th day of every month.

5. That the agreement further stipulates that if the defendant wants to renew th e agreement for a further period then the rent will be Rs. 9,000/- (rupees nine thousand) only per month for the next one year i.e. from 1.4.08 to 31.3.09 with other terms and condition as mutually agreed upon between the parties.

11. That as per terms of the tenancy agreement executed between the parties, in case of renewal of the tenancy agreement the rent of the suit room would be Rs. 9,000/- (rupees nine thousand) only from the month of April, 2008. And as such, the plaintiff is entitled to and claim a sum of Rs. 9,000/- (rupees nine thousan d) only per month as compensation for illegal and unauthorized occupation of the suit room by the defendant on and from 1.4.2008 till the recovery of khas and v acant possession of the suit room. (cid:29)

3. oted paragraphs have been responded to as follows: In the written statement filed by the defendant/petitioner, the above qu (cid:28)7.That in answer to para 4 of the plaint it is amply made clear that monthly cl ear rent is Rs. 3000/- P.M. and Rs. 1,000/- is service charge. Inspite of such f ixation of monthly rent the defendant to avoid conflict with the plaintiff-landl ord and on his pressure used to pay him regularly Rs. 4,000/- as rent. The landl ord-plaintiff has no right under law to realize extra amount of Rs. 489/- per mo nth as service tax from the defendant. The tenancy of the defendant under the pl aintiff in respect of the suit room continued as statutory tenant and also under other provision of law. That as per the provisions of the Assam Urban Areas Ren t Control Act, 1972, the plaintiff is not entitled under the law to realize an a mount of Rs. 489/- (Rupees four hundred and eighty nine) only as service tax and hence the defendant denies the averment of the plaintiff that the defendant is liable to pay service tax with effect from June, 2007 as the same is not tenable in the eye of law. The answering defendant further states that under the Assam Urban Areas Rent Control Act, 1972, there is no provision for service tax.

8. That as that defendant was in need of a tenanted premises like the present su it premises for carrying on her business and as there was dearth of such premise s so the plaintiff landlord used pressure to sign in the agreement which contain ed onerous terms not permissible even under law. That non implementation of the clause of agreement as detailed in para-5 of the plaint by this defendant cannot lead to her ejectment from the suit room. Her tenancy never ceased to exist bec ause of the non implementation of that clause of the agreement. The so called ag reement was the out came of undue pressure undue influence, coercion and absence of freewill and being and being violation of the provision of law are not bindi ng on the defendant. The agreement dated 27.3.2007 between the plaintiff and the defendant being void in the eye of law in view of Section 17 of the Registratio n Act, the said averment of the plaintiff that rent will be renewed for the next year from 1.4.2008 to 31.3.2009 at Rs. 9000/- (Rupees nine thousand) only is de nied in view of the fact that the said agreement dated 27.3.2007 is void in the eye of law and thus the same cannot be enforced. That the plaintiff in a very un ilateral and arbitrary manner fixed the monthly rent of Rs. 9,000/- for the year 2008-2009, which the defendant did not agree upon as the same being not in cons onance with the Assam Urban Areas Rent Control Act and thereafter the defendant has been filing rent before the learned Court of Munsiff No. 2, Jorhat.

14. The answering defendant stoutly denies the averment of the plaintiff in para graph 14 of the plant, that the plaintiff is entitled to claim a sum of Rs. 9,00 0/- (Rupees nine thousand) only per month from the month of April, 2008. The ans wering defendant further denies that the plaintiff is entitled to compensation f orm the defendant for illegal and unauthorized occupation of the suit room by th e defendant on from 1.4.2008 till the recovery of the khas and vacant possession of the suit room. The answering defendant further states that the tenanted prem ises of the defendant was constructed in the year 1968 and the same has not been renovated by the plaintiff since then and thus in view of the above there has b een a depreciation of the tenanted premises of the defendant and thus in view of the above the plaintiff is not entitled to claim a sum of Rs. 9,000/- (Rupees n ine thousand only) per month from the month of April, 2008. The answering defend ant further denies that the plaintiff is entitled to arrear compensation from th e defendant for illegal and unauthorized occupation of the suit room by the defe ndant on from 1.4.2008 till the recovery khas and vacant possession of the suit room. That, in answer to the averments allegations and claims of the plaintiff m ade in para 11 of the plaint it is submitted that the plaintiff is nto entitled to any rent at the rate of Rs. 9,000/- and compensation as claimed in the suit. The defendant’s occupation of the suit room is legal as she is so far a tenant i n respect of the suit room and regularly paying monthly rent. (cid:29)

4. During the pendency of the suit, which was instituted in September, 2008 , the defendant/petitioner filed Masc. (J) Case No. 27/2011 on 5.7.2011 under Se ction 10 read with Section 151 of the Code of Civil Procedure (CPC), 1908 prayin g for stay of the further proceeding of Title Suit No. 24/2008 till adjudication of Misc. (J) Case No. 27/2010, which was filed on 14.9.2010, by which amongst o thers fixation of fair rent in respect of the tenanted premises was prayed for.

5. The learned Trial Court has dealt with the above application by the impu gned order dated 29.8.2011. The application i.e. Misc. (J) Case No. 27/2011 havi ng been rejected by the impugned order dated 29.8.2011, the defendant/petitioner has filed the instant application under Article 227 of the Constitution of Indi a praying for issuance of the abovementioned writ, order or direction. I have heard Mr. D. Das, learned Sr. Counsel assisted by Mr. R. Singha, 6. learned counsel for the defendant/ petitioner as well as Mr. B. Chakraborty, lea rned counsel appearing for the plaintiff/respondent. Mr. Das, learned counsel fo r the petitioner submits that on the face of it, the impugned order dated 29.8.2 011 is not sustainable in law inasmuch as the learned Trial Court committed juri sdictional error in holding that there is no scope for invoking Section 151 of t he CPC bye-passing the provisions of Section 10. He submits that the application in question having been filed under Section 10 read with Section 151 of the CPC , even if it is held that Section 10 CPC is not attracted, the provisions of Sec tion 151 CPC cannot be ignored so as to deal with the kind of situation in which the matter stands. In this connection, he has referred to the decision of this Court reported in (1987) 2 GLR 109 (On the death of Subho Ram Kalita His Heirs S mti Barada Bala Kalitani & Ors. Vs. Dharmeswar Das Koch & Ors.) so as to emphasi s that recourse to Section 151 CPC can be taken where the requirements of Sectio n 10 of CPC are not satisfied.

7. Countering the above argument, Mr. Chakraborty, learned counsel represen ting the respondent submits that there being no jurisdictional error in passing the impugned order dated 29.8.2011, this Court exercising its power and jurisdic tion under Article 227 of the Constitution of India will be reluctant to interfe re with the said order. He also submits that if the plea of the petitioner is to be entertained for stay of the suit on the analogy that the determination of th e suit will have to be preceded by fixing fair rent etc. there will be uncertain ty to the suit, which will be an abuse of the process of law.

8. I have considered the submissions made by the learned counsel for the pa rties and have given my anxious consideration to the same. In Dharmeswar Das Koc h (supra), the Division Bench of Court had the occasion to deal with the scope o f Section 151 of CPC. It was observed that the Section 151 of CPC provides the i nherent powers to the Court which is in addition to the powers specifically conf erred on the Court by the Code. It was observed that the Court is free to exerci se the powers conferred by Section 151 of CPC when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the legislature. It has further been observed in the said decision that inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code.

9. In the instant case, during the pendency of the suit filed in September, 2008, the prayer for stay of the same was made by the defendant/petitioner by f iling Misc. (J) Case No. 27/2011 on 5.7.2011. In the application so filed, the p rovisions under Section 10 read with Section 151 of CPC were invoked. Section 10 of CPC provides for stay of suit. As per the said provision, no court shall pro ceed with the trial of any suit in which the matter in issue is also directly an d substantially in issue in the previously instituted suit between the same part ies.

10. The learned Trial Court dealing with the prayer of the petitioner has he ld that even if Misc. (J) Case No. 27/2010 is said to be a suit, Section 10 of C PC shall have no application to the case at hand. Since the provision of Section 10 of CPC provides for stay of subsequently instituted suit, learned Trial Cour t has held that the prayer of the defendant/petitioner for stay of Title Suit No . 24/2008, which was admittedly instituted prior to Misc. (J) No. 27/2010 is not liable to be stayed.

11. Learned counsel for the petitioner has fairly admitted that Section 10 o f CPC under which Misc. (J) Case No. 27/2011 was filed has no application for st ay of the Title Suit No. 24/2008. However, he strenuously argued that since the application was also filed under Section 151 of CPC, considering the particular fact situation, it was incumbent on the part of the learned Trial Court to deal with the matter as per the principles involved towards exercising the jurisdicti on under Section 151 of CPC.

12. I have given my anxious consideration to the submission so made. The app lication was filed under Section 10 read with Section 151 of CPC. Even in this a pplication under Article 227 of the Constitution of India, the petitioner has ma de specific averments regarding applicability of Section 10 read with Section 15 1 of CPC for stay of the suit. However, as noted above, learned counsel for the petitioner has fairly admitted that Section 10 of CPC will have no application t o the case.

13. So far as Section 151 of CPC is concerned, same saves the inherent power of the Court empowering the Court to make such orders as may be necessary for t he ends of justice or to prevent abuse of the process of the Court. Needless to say that the said power will have to be exercised when the same is not in any co nflict with what has been expressly provided in the Code or against the intentio n of the legislature.

14. When the petitioner made the prayer for stay of the suit, the provision of Section 10 of CPC was invoked. Section 10 of CPC provides for stay of subsequ ently instituted suit in issue. In the application, the petitioner specifically pleaded that the issue involved in both the cases i.e. Title Suit No. 24/2008 an d Misc. (J) Case No. 27/2010 are basically one and the same and thus the suit is required to be stayed. When the provision of Section 10 of CPC does not provide for stay of the suit, the petitioner has now fallen back on the provision of Se ction 151 of CPC. It is in this context, learned Trial Court has held that when Section 10 of CPC does not have any application, the provision of Section 151 of CPC cannot invoked so as to bye pass the provision of Section 10 of CPC.

15. In view of the above, I do not find any infirmity with the findings so r ecorded by the learned Trial Court. Consequently, the revision petition is dismi ssed. However, there shall be no order as to costs.