L- .^^ ^•^\^ ^' THE HIGH COURT OF CHHATTISGARH BILASPUR Writ Petition »0. 625 ^2004 PETITIOMERS ^^ A?^ ,^w,* (y^yy * y^y / 1^1 k-.- Ap''^^ ^<^^" A6". .-•"' '^y ^' ^•i CW' c^4-\ 8\\asv I* : 1. Shyam Lal Agrawal, aged about 55 years, S/o.Laxmi Narayan Agrawal R/o. Bus Stand Charoda, B.M.Y.,Tahsiland District Durg (C.G.) (Dead) 2. Mohan LalAgraviral, Aged about 50 years, S/ o. Laxmi Narayan Agra'wral R/o.HouseNo. 16/491 Lodhipara Station Road, Raipur, Tahsil and District Raipur (C.G.) 3. Madan Lal Agra'wal, Aged about 48 years S/o. Laxminarayan Agrawal R/o. Bus Stand Charoda Tahsiland Distt. Durg(C.G.) 4. Ooverdhan LalAgrawal Aged about 45 years, S/o. Laxmi Narayan Agra'wal R/o. Lodhipara Raipur, Tah. and Distt. Raipur(C.G.) 5. Purshottam Das Agraw?al Aged about 35 years S/ o. Laxmi Narayan Agrawal ..^ :!»» lill: II Z II 6. Tansukh Das Agrawal, Aged about 38 years S/o. Laxmi Narayan Agrawal No. 5 &6 R/o. Lodhipara Raipur, Tahsil and District Raipur(C.G.) 7. Mansukh Qas Agra\yal Aged about 33 years S/o. Laxmi Narayan Agrawal R/o. Station Road, Raipur, Tah. and Distt. Raipur (C.G.) RB8PONDBWT WESR.SDiS Sardar Guruvachan Singh, Aged about 35 yea.rs S/o. Ra'wel Singh, Friends Hotel Restorent, Station Road Lodhipara, Raipur(C.G.) WRIT PETITIOW U/A 227 OF THE COWSTITUTION OF IMDIA .A'K:^ HISH COURT OF JU&ICAWRE AT BIUSPUR : CHHATTIS6ARH Writ Petition No.625 of 2004 Shyam Laf Agrawal d Others. Versus Sardar Suruvachan Singh POSTFOR ORDER ON &A.AUGUST. 2004 Sd/- L.C.BHADOO Judge HI6H COURT OF JUDICATURE AT BILASPUR. CHHATnSSARH Writ Petition No.625 of 2004 Shyam Lal Agrawal A Others. Versus Sardar Suruvachan Singh Present:- Shri S.K. Beriwal, Advocate: Shri B.P. Sharma, Advocate: For the petitioners. For the respondent. OR DER (Passed on ^A> August. 2004) L.C. BHADOO. J. By this writ petition filed under Article 227 of the Constitution of India the petitioners have questioned the legality, validity and propriety of the order dated 24-1-2004 (Annexure-P/7) passed by the learned 8th Additional District Judge (Fast Track Court) Raipur, (Khagendra Singh), whereby the teamed Additional District Judge has stayed the further proceedings of the Civil Suit No.23-A/2002 fited by the petitioners herein against the respondent for payment of arrears of rent and eviction of the disputed premises. (2) Brief facts leading to filing of this writ petition necsssmy for the disposal of this petition are that pespondent herein took the disputed premises ad measuring 990 sq. feet on rent in the year 1982 from the originai landtord Amarjeet Singh. However, thereafter Amarjeet Singh vide registered sale deed dated 19-5-1985 sold a portion of 770 sq. feet, out of 990 sq. feet to late 5mt. Sulab Bai Agrowal. Thereafter, in the year 1988 late Smt. Sulab Bai Agrawal filed a suit against the respondent herein for arrears of rent and eviction of the di^iuted premises on the ground of default in 7 payment of rent and nuiscmce under Section 12 of the M.P. Accommodation Control Act, 1961, which came to be registered as Civi! Suit No.67-A/99. Later on, it was registered as 23-A/2002. The defence of the respondent herein in that eviction suit was that he is not a tenant of Smt. Guiab Bai Agrawal. During tfie pendency of this civil suit, Smt. Sulab Bai Agawal died, therefore, the petitioners were brought on record as legal heirs of late Smt. fiulab Bai. (3) Respondent herein also filed a suit for specific performance of the contract for aale regarding the said diqiuted premises against the original landlord and as also against the petitioners and that suit was registered as 74-A/99. Ultimately, that suit for specific performoaice of the contract for sale came to be dismissed by the learned District Judge, Raipur vide judgment dated 8-4-2000, against which the respondent herein has filed an appeal before this Court-. (4) During the pendency of the eviction suit against the respondent herein an application under Section 10 of the Code of Civi! Procedure was filed on behalf the respondent herein for staying the proceedings of the eviction suit on the ground of pendency of the suit for specific performouice of the contract for sale regarding the disputed premises, but that application was dismissed by the 3 Additional Oistrict Judge vide order dated 16-3-99 on the ground -that even though one or two issues are similar in both the suits but the matter in issue in the suits was different. Against this order respondent herein had not preferred omy revision, therefore that order attained finalit/. However, after disposal omd dismissal of the suit for specific performance, the respondent herein again filed an application under Section 151 of the Code of Civil Procedure before the Additional District Judge for staying the proceedings of eviction suit on the ground that he has preferred an appeal before the High Court against -t+ie dismissa! of his suit and that is pending for decision. Even that application under Section 151 of the Code of Civil Procedure was rejected by the Additional District Judge vide its order dated 20 June 2000. Thereafter, the proceeding of the '•r"~~\ L lAifi. 3 eviction suit was allowed to be continued and ultimatety after allowing both the parties to lead their evidence, final arguments were heard by the learned 8 Additionat District Judge, after hearing the arguments, case was fixed for judgment on 31st December 2003. However, on 31st becember 2003 counsel for the defendant/respondent herein made an oral request that the defendant has preferred an appeal against the dismissal judgment of the suit for Specific performance, therefore, proceedings of fhe eviction suit be stayed. Ultimatety, vide impugned order learned Additionai District Judge stayed the proceedings observing that the part-ies in both the suits are same and some subject matt-er of the suit is also almost similar. As the parties are same, therefore, proceedings of the suit were stayed, against which the petitioners hqve filed this writ petition. (5) I have heard Shri S.K. Beriwal, learned counsel for the petitioners and Shri B.P. Sharma, learned counsel for the respondent. (6) The first objection raised by the learned counsel for respondent is that against the impugned order writ petition under Article 227 of the Constitution of India is not maintainable. The petitioners herein ought to have preferred revision under Section 115 of the Code of Civil Procedure. But this argument of the leamed counsel is without any force because as far as filing of the revision under Section 115 of the Code of Civil Procedure is concerned, proviso to sub-section (1) of Section 115 of the C.P.C. lays down that "Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings." Therefore, after the amendment in the Code of Civsl Procedure, by Act No.46 of 1999 revisional power under Section 115 of the C.P.C. has been curtailed to a great extent and as per the proviso extracted above revision against any order lies only in the case when had the order impugned been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. In this case, the order / r-'"s i,/ impugned was passed by the learned 8 Additional District Jud9e on an orat request made by the counsel for the defendant for staying of the proceedings under inherent powers till the disposal of -the dppeal against the judgment dated 8-4-2000 passed in suit for specific performance of the contract. Therefore, even if the impugned order had been made in favour of the petitioners herein, the suit could not have been disposed of and still the judgment was to be passed by the leamed bistrict Judge on the merits of the case. Therefore, in my opinion, the contention of the leamed counsel for the respondent is without force and the same is not tenable as per the provision of Section 115 of the C.P.C. C7) Now, coming to the question about the maintainability of this writ petition under Article 227 of the Constitution of India is concerned,the Hon'ble Apex Court- in the matter of Surya Dev Rai V. Ram Chander Rai d Ors. reported in JT 2003 (6) SC 465 has held that; "Interlocutory orders passed by courf-s subordinate to The High Court against which the remedy of revision has been excluded are open to challenge ouid subject to cert-iorari and the supervisory jurisdiction of The High Court. In exercise of certiorari or supervisory jurisdiction the High Court will not convert- itself into a court of appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inference or correct errors of mere formal or Technical character. Where a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it has or the jurisdiction thou9h available is bemg exercised in a manner not permitted by law anci failure of justice or grave injustice has resulted, the 1-ligh Court may step in to exercise its supervisory jurisdiction. In ano-ttier matter of State. through Special Cell. New Delhi Vs. Navjot Sandhu @ Afshan 6uru and Ors. report-ed in JT 2003 (4) SC 605 the Hon'ble Apex Court held that; 1^1 "Article 227 of the Constitution of India gives the High Court The power of superintendence over atl courts and tribunals throu9hout the territories in rekition to which it exercises jurisdiction. This jurisdiction aannoT be limited or fettered by ony Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribumls within the limiTs of Their authority and to seein9 that •they obey the law. The powers under Article 227 are wide and oan be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purporr to exercise any such discretionary power. It is settle k>w that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and Tribunoil's within the bounds of their authority and not to correct mere errors. Further where the statute bans The exercise of revisional powers it would require very exceptional circumstances to warront interference under Article 227 of the Constitution of India since the power of superintendence was not meont To circumvent STatutory law. It is settled law ThaT the jurisdiction under Article 227 could not be exercised "as the cloak of an oppeal in disguise ." Therefore, in view of the law laid down by the Hon'ble Apex Court where the High Court- reaches to the conclusion that the subordinate court has exercised the jurisdiction in a moinner not permitt-ed by law dnd failure of justice or grave injustice has resulted, then High Court can step in to exercise its supervisory jurisdiction. (8) Looking to the above principte. now, I shall proceed to examine the facts of the present case and to see whether the impugned order passed by -the 8 Additional Oistrict Judge stood up to the test laid down by the Hon'ble Apex Court in the above two decisions. It is admitted position tih'at the predecessor entitled of the petitioners herein i.e. Smt. i3ulab Bai after purchasing the disputed premises from the original landlord of the respondent herein, namely Aniarjeet Singh, filed a suit for eviction against /iuit. ^.^ b the respondent herein on the ground of default, arrears of rent and nuisance under Section 12 of the M.P. Accommodation Control Act, 1961, whereas,the respondent herein filed a suit for specific performance of the contract for sale against original landlord Amarjeet Singh and the petitioners herein. The said suit came to be dismissed by the leamed Oistrict Judge after trial vide its judgment dated 8-4-2000, therefore, in my opinion, even though same parties were there in the above two suits, but as far as the other requirement of Section 10 of the Code of Civil Procedure is concerned, the condition, the matt'er in issue should also be directly and substantialty in issue in a previously instituted suit must be satisfied in order to stay the proceeding of the suit instituted later in time. But in the present case, the nwtter in both the cases ccuinot be held to be directly ouid substontially the same for the reason that the respondent herein filed a suit for specific performance of the contract for sale against the original landlord whereas, •rfie petitioners herein filed a suit for eviction on the ground of ctefault, arrears of rent and nuiscmce against the respondent herein in which the trial Court i.e. learned 8 Additional Oistrict Judge was required to decide as to whether the petitioners herein were able to establish the relationship of the landlord and tenant between them and respondent and second issue was whether the petitioners herein have been able to prove the ground of defauft against the respondent herein as envisaged under Section 12(l)(a) of the AA.P. Accommodation Controi Act, 1961, whereas, in the suit for specific performcBice of the contract for sale was filed by the respondent herein. The issue involved was whether original kindlord Amarjeet Singh had entered into a contract for sale of the disputed premises with the respondent herein. In that case, the respondent herein was required to prove (i) whether the controct for sale was true and genuine, (ii) whether vendee was ready and witling to perforni his part of the contract and (iii) whether the subsequent transferee had the notice of the earlier agreement. If all -t+ie ingredients necessar/ in issue of specific performance of the contract are found to establish and decree would fotlow, then sale deed would be executed ond registered by either of the parties or on their failure by the Court ond f-" .^S4, Ji/' 7 thereafter vendee would acquire the title of the property in dispute. Without acquiring the title in -riiat suit in the disputed propert/ respondent was not entitled to stall the proceeding of eviction suit. Moreover, if the respondent will succeed in the appeal, then he will be entitled for possession ond for that indefinite event the rights of the petitioners available to them under Section 12 of the M.P. Accommodation Control Act, 1961 cannot be put in jeopardy. (9) It is thus clear from the above facts that there was no substontial identify of the subject matter in both the suits and the field of controversy between the parties in two suits. The matter directly and substantially in issue of eviction suit was not the same in the suit of specific performance of the contract. Moreover, the suit for specific performance filed by the defendant had already been dismissed by the leamed District Judge vide its judgment dated 8-4-2000 holding that the respondent herein was not able to prove the existence and execution of the agreement for sale by the original landlord regarding disputed premises. In this connection, I am fortified in my view by the various judgments of the Madhya Pradesh High Court, Orissa 1-ligh Court and Patna High Court in the matters of Prakash Chand Soni Vs. Anita Jain reported in 2002 (2) M.P.L.J.121. Trivenidevi Naraindas Vs. Vyay Mohan Bose reported in 1976 M.P.L.J. 163. Lachaman Nepak and others Vs. Badankayalu Syama Babu Subudhi and another reported in AIR 1989 OKISSA 154 cmd &r. N.P. Tripathi Vs. Smt. Dayamanti bevi and another reported in AIR 1988 PATNA 123. (10) Even otherwise, it is not out of place to mention here that application for stay fited under Section 10 of the Code of Civil Procedure by the respondent herein was rejected by +he 3 Additional Oistrict Judge on 16-3-99 holding that the proceedings of the suit cannot be slhayed as the provisions of Section 10 of the C.P.C. were not appliaibie. After dismissal of the suit for specific performouice, learned Additional District Judge again rejected the application of the respondent herein filed under Section 151 of the C.P.C. for staying the proceedings of the Civil Suit vide order dated 20-6-2000. Therefore, in view of these orders also, the learned 8' Additional District Judge was not within his right to stay the proceedings of the suit vide impugned order and that too simply on an oral request made by the counsel for the respondent herein. Therefore, the above power exercised by the tearned 8 Additional District Jud9e under the guise of inherent power is nothing but misu% of the judicial process by the learned Additional District Judge. (11) Learned counsel for the respondent argued that the learned Additional District Judge has passed the impugned order by exercising the inherent power under Section 151 of the Code of Civil Procedure. In this connection, it will be useful to refer the judgment of tfie Hon'ble Apex Court. The Hon'ble Apex Court in the matter of Manohar Lal Choppa V. Rai Bahadur Rao R<ya Seth Hiralal reported in AIR 1962 SC 527 has helci •riiat: "It is welt settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incopable of contemplating all the possible circumstances which may arise in future liTigation and consequently for providing The procedure for them. Section 151 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. It has further been said that when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code. The inherent powers of The Court have to be resorted to only ex debito justitiae to do the real and substouitial justice for the administration of which alone it exists To prevent abuse of the process of the Court. It should not be exercised copriciously and arbitrarily. Therefore, inherent power under Section 151 of the Code of Civil Procedure was not avaitable to the learned Additional District Judge looking to the facts and circumstances of the case and that too on <m oral request made by the counsel for the respondent for the reason that the request of /^. •!\ the respondent was already rejected twice for staying the eviction proceedings of the aiit by the predecessors of the learned Additional District Judge vide orders dated 16-3-99 and 20-6-2000. The inherent power unde" Section 151 of the C.P.C. should be exerci^d by the Court in very exceptionffil circumstances and that such powers should not be exercised unless exercise of such power is absofutely essential for securing the ends of justice and to over come the failure of justice. Further the leamed Additional Oistrict Judgs by resorting to the inherent power under Section 151 of the Code of Civil Procedure witl be frustrating the very object and purpose of a bilaterol munificent piece of legislation i.e. the M.P. Accommodation Control Act, 1961 setting at nought the legislative mandate thereby rendering nugatory the provisions of Section 12 of the M.P. Accommodation Control Act, 1961 and to take recourse to such a procedure would not only be not subservient to the ends of justice but would be overriding the special procedure mandated by a self contained Code as the Control Act. It would indeed be on abuse of the process of the Court by trying to induce the Court to render Section 12 of the Act as otiose and redundant. Therefore, powers under Section 151 of the Code was not available to the trkil Court in this case. (12) Apart from this, learned counsel for the petitioners argued that even on the principle of res Judicaia ^ne. learned Additional District Judge was not within its right to pass the impugned order, as the applications of tfie respondent herein filed under Section 10 of the C.P.C. and thereafter under Section 151 of the C.P.C. were already rejected vide orders dated 16-3-99 and 20-6-2000, as the principles of res Judicaiu also opplies in the case of intermediatory order passed in the same proceeding. I am entirely in agreement with the point raised by the learned counsel for the petitioners, as the t-fon'ble Apex Court in the matter of Satyadhanc Shosal and others v. Smt. Deorajan bebi and another reported in AIK 1960 SC 941 has held that: "The principle of res Judicata applies also as between two stages in The same litigation To this extent that a Courl-, whether the trial court or a -^ 10 higher court having at cn earlier stage decided a matter in one way will not allow the parties to re- agitate the matter again at a sub^iquent 3+090 of the same proceedings." In this connection, the Madhya Pradesh High Court in the matte; of Anandi Lal Ahirwar Vs. Satya Vrat Chaturvedi reported in 2004 MPJR 175 had held that: "Once the application for summoning wi+nesses rejected earlier- that order will operate as /%? judicxita - Freih application for calling the witness cannot be allowed." (13) Therefore, in view of the above law on the point, I am of the opinion that when the cipptication of the respondent was rejected twice earlier on the ground of principte of res judicata, the learned 8 Additional District Judge ought not to have exercised the power under Section 151 of the Code of Civil Procedure and that too on an oral request made by the counsel for the respondent cmd further that the matter was already fixed for judgment, after hearing the arguments. (14) In the result, the impugned order be.mg perverse, incorrect contrary to sett-led law, the same cannot be sustained, therefore, -this orde" deserves to be quashed while exercising the power under Artiele 227 of the Constitution of India, as such this writ petition is allowed. The impugned order is quashed. The trial Court is directed to proceed with the trial of the suit. (15) Before parting with this order, I feel it necessary to observe that the learned Additional District Judge passed the impugned order by ignoring the earlier orders dated 16-3-99 and 20-6-2000 passed by his predecessors rejecting the proyer of the re^iondent herein for staying the proceedings of +he eviction suit. It is astounding that such a senior judiciai officer has passed the impugned order ignoring the basic principles of law onc! the two earlier orders. The impugned order reflects upon the competence, knowledge ond conduct of the judicial officer. Therefore, the Registry of 11 this Court is directed to enter in the A.C.K. of the officer and place the copy of this order before Hon'ble the Chief Justice for appropriate action against the officer. Sd/- L.C.BHADOO Judge i:ci*ve