1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2960 OF 2009, WRIT PETITION NO.2961 OF 2009, WRIT PETITION NO.2962 OF 2009, WRIT PETITION NO.2963 OF 2009, WRIT PETITION NO.2965 OF 2009, WRIT PETITION NO.2966 OF 2009 Jayesh Navalshankar Joshi ...Petitioner (in all the petitions) vs. Shantaram Vinayak Karnik ...Respondent (in all the petitions) CORAM :A.S.OKA,J. DATE : MARCH 12, 2010 JUDGMENT: 1 Parties were put to notice that the petitions will be heard finally. Accordingly, an order was passed on 12th January 2010 in Civil Application no.15 of 2010 and other connected Civil Applications. The facts of the case in these petitions are more or less similar and therefore, a reference has been made to the Writ Petition no.2960 of 2009. 2 The petition has been filed by the original defendant. The respondents are the original plaintiffs. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the Judgment and Order dated 29th November 2008 passed by the Appeal Bench of the Court of Small Causes by which the revision application preferred by the first respondent was allowed. The order under challenge before the Appeal Bench of the Court of Small Causes was an order passed by the learned trial Judge by which the application made by the petitioner for stay to the proceedings of the suit 2 was allowed. The result of the impugned order is that the application for stay stands rejected. 3 The application for stay was made by the present petitioner in the suit filed by the first respondent against the petitioner in the Court of Small Causes at Mumbai. The suit was filed by the 1st respondent in the Court of Small Causes for possession of the suit premises more particularly described in paragraph 1 of the plaint. The suit proceeds on the footing that the first respondent was the owner and landlord of the suit premises and that the petitioner was the tenant in respect of the suit premises. The suit is filed for eviction under the provisions of Maharashtra Rent Control Act, 1999 (hereinafter referred to as “the said Act”). The eviction was sought on various grounds incorporated in the suit. The suit was filed on 26th November 2001. The present petitioner filed a written statement. One of the contentions raised by the petitioner is that that there is no relationship of landlord and tenant between the first respondent and the petitioner. It was contended that the son of the petitioner was the owner of the suit premises and the petitioner was in possession. It must be stated here that the plaint was amended and the present 2nd and 3rd respondents were added as 2nd and 3rd plaintiffs. An additional written statement was filed by the petitioner for dealing with the amended plaint. 3 In the application for stay made by the petitioner before the Court of Small Causes, it was contended by the petitioner that there was an agreement for sale executed by the first respondent. Various terms and conditions of the agreement were referred to in the said application. The petitioner stated that he has filed a suit no.1705 of 2003 in this Court for 3 specific performance of the said agreement for sale. It is pointed out that the first respondent has purportedly sold the suit property to the 2nd and 3rd respondents. It is contended that in the suit filed by the petitioner in this Court the issue of right of ownership will be decided and therefore, the said suit was required to be heard first and pending the disposal of the said suit, the suit filed by the first respondent in the Court of Small Causes will have to be stayed. The said application/notice was made absolute by the trial Court. It will be necessary to consider the ground on which the notice was made absolute by the trial Court. The learned Judge of the Court of Small Causes referred to contentions of the parties in both the suits. The trial Court noted that the case of petitioner is that he is the proposed purchaser. The trial Court observed that the rights of the parties will be finally decided in the suit for specific performance pending in this Court and therefore, pending the decision of the suit, the suit in the Court of Small Causes cannot proceed. 4 The Appeal Bench of court of Small Causes has interfered. The Appellate Court held that section 10 of the Civil Procedure Code,1908 (hereinafter referred to as “the said Code”) will have no application and section 151 of the said Code cannot be invoked. Therefore, it was held that the trial Court had no power to grant stay and accordingly order of stay of the suit was vacated. This is the order impugned in this petition under Article 227 of the Constitution of India. 5 The learned counsel for the petitioner has made a detailed submissions. The learned counsel has invited my attention to the issues framed in the suit filed before the Court of Small Causes. The learned counsel for the petitioner 4 accepted that section 10 of the said Code will not apply. However, she submitted that this is a fit case where the inherent power under section 151 of the said Code will have to be exercised. The learned counsel for the petitioner pointed out that in the suit filed in the Court of Small Causes, an issue has been specifically framed on the plea of the petitioner that he is in possession of the suit premises in part performance of the agreement for sale. The learned counsel submitted that the said issue is also involved in the suit for specific performance filed by the petitioner which is pending in this Court. The learned counsel for the petitioner further submitted that every Judgment of the Apex Court will have to be read in the context of the facts of the case before the Apex Court. The learned counsel relied upon the Article 141 of the Constitution of India and submitted that the decision of the Apex Court taking a view that if section 10 of the Code has no application, the section 151 of the said Code cannot be invoked was delivered considering the peculiar the facts of the case before the Apex Court. She submitted that if the power to stay the suit pending in the Court of Small Causes is not exercised under section 151 of the said Code, the inherent power will be redundant. She submitted that this was a case where inherent power has to be exercised. She therefore submitted that an error has been committed by the Appeal Bench of Court of Small Causes by interfering with the order granting stay. 6 I have given careful consideration to the submission. As conceded by the learned counsel for the petitioner, section 10 of the said Code will have no application. The suit filed by the first respondent is pending in the Court of Small Causes hav- 5 ing exclusive jurisdiction to deal with the suits between the landlord and tenant. Exclusive jurisdiction has been con- ferred on the said Court by section 33 of the said Act. The suit for specific performance is pending in this Court. The Courts in which both the suits are pending are not the Courts of the concurrent jurisdiction. Therefore, on plain reading of the said section 10, it will have no application. As far as sec- tion 151 of the said Code is concerned , the law is no longer res integra. In the case of Manohar Lal Chopra versus Rai Ba- hadur Rao Raja Seth Hiralal (AIR 1962 SC 527), the Apex Court considered the scheme of section 151 of the said Code. The Apex Court held in paragraph 39 of the decision as un- der : “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 pro- ceeding with the trial of that suit in certain specified circum- stances. 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 inher- ent powers under Section 151 is not justified.” . (emphasis added) In paragraph 42 of the said decision it was held that : “Inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the pro- vision should normally be regarded as exhaustive. (emphasis added) The Apex Court in the case of National Institute of Mental Health & Neuro Sciences v. C. Parameshwara,(2005) 2 SCC 256, in paragraph 12 held thus : 6 “12. In the case of Manohar Lal Chopra v. Rai Ba- hadur Rao Raja Seth Hiralal1 it has been held that in- herent jurisdiction of the court to make orders ex deb- ito justitiae is undoubtedly affirmed by Section 151 CPC, but that jurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normally be regarded as exhaustive. In the present case, as stated above, Section 10 CPC has no application and consequently, it was not open to the High Court to bypass Section 10 CPC by invoking Sec- tion 151 CPC.” (emphasis added) . The inherent power under section 151 of the said Code cannot be exercised so as to nullify the express provisions of the said Code. The Apex Court held that whenever the said Code expressly deals with a particular matter ,the relevant provisions of the said Code are normally regarded as exhaustive. 7 Thus, what has been held by the Apex Court is that the inherent jurisdiction under section 151 cannot be exercised in the cases where (i) the exercise of jurisdiction under section 151 of the said Code will nullify the express provisions of the said Code or (ii) where the Code expressly deals with a particular matter the reason being that the said particular provision is normally regarded as exhaustive. 8 The decisions of the Apex Court lay down limitation on exercise of power under section 151 of the said Code. The ratio of the decisions of the Apex Court is that if there is a specific provision dealing with a particular matter , the said provision will have to be treated as exhaustive. Therefore, in such a case, inherent jurisdiction cannot be exercised. It must be noted here that a reliance has been placed by the learned counsel for the petitioner on the observations made by this 7 Court on paragraph 7 of the order dated 12th November 2009 passed in this writ Petition. Paragraph 7 reads thus : “7 Prima facie I am of the view that in an exceptional case like the present one which falls outside the ambit of section 10 of the CPC, the Court can have recourse to Section 151 of CPC and grant stay of the proceedings.” This order has been passed by this Court at the stage of hearing as to admission of the writ petition. What is expressed in paragraph 7 is the prima facie view of this Court while issuing rule in the writ petition. Such prima facie opinion expressed by this Court while issuing rule does not become a binding precedent. Therefore, reliance cannot be placed on prima facie opinion expressed by this Court at the time of hearing as to admission. The finding of the Appellate Bench of the Small Causes Court is that section 10 will have no application and therefore, section 151 cannot be invoked. There is no reason to find fault with the impugned order. There is no merit in the petition. 10 Hence, I pass the following order : . Petitions are rejected. Rule is discharged. No order as to costs. Civil Application Nos.15 of 2010, 16 of 2010, 18 of 2010, 19 of 2010, 20 of 2010 and 21 of 2010 do not survive and the same are disposed of. JUDGE