N P TRIPATHI Vs. DAYAMANTI DEVI

JUDGEMENT

(1.) This revision application is directed against the order dated 17-1-1985 passed by the 1st Additional Munsif, Patna in Title Suit No. by the defendant in the action. By the impugned order the trial court has rejected the prayer of the defendant-petitioner that further proceedings in the suit should remain stayed till the decision of Title Suit No. 360/82, on an application made by the petitioner under S.10, Civil P.C., (hereinafter referred to as the Code). This case was referred by a learned single Judge of this Court to a Division Bench for an authoritative decision on the point that in the circumstances of the case even if it be held that the provisions of S.10 of the Code do not apply, inherent powers of the court can be invoked under S.151 of the Code. Hence this case before us.

(2.) If the provisions of S.10 of the Code squarely cover the point debated at the Bar, this application has to be allowed. If, on the contrary, it be held that there is no scope for attracting the provisions of S.10 then only a question arises as to whether in such cases the inherent powers of the Court under S.151 of the Code can be invoked treating them as exception to the general rule that stay be not granted in such cases. Learned counsel for the petitioner while canvassing the case even before us insisted that this case was squarely covered by the provisions of S.10 of the Code and, therefore, the impugned order suffers from jurisdictional infirmity. In the alternative he half-heartedly submitted that recourse may in such cases be taken to S.151 of the Code also. If that were the stand taken by learned counsel before the learned single Judge, perhaps, this could not have necessitated a reference to a Division Bench at all. But before dealing with the question with regard to the applicability of S.10 of the Code to such a case, the facts first. They follow.

(3.) Title Suit No. 360 of 1982 was instituted by the petitioner for a decree for specific performance of contract against one Ramesh Prasad and his brother whose successors in interest are the plaintiffs in Title Suit No. 97/83 (opposite parties 1 and 2 here). The petitioner filed the earlier suit and he was made a defendant in the suit culminating in the impugned order. This suit, namely, Title Suit No. 97/83 is one for eviction under the summary procedure as mandated by law in S.14, Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (Bihar Act 4 of 1983) (hereinafter referred to as the Act on the ground of personal necessity, pure and simple. In the earlier Title Suit, namely, Title Suit No. 360/82 opposite parties 1 and 2 were arrayed in the category of defendants as being transferees not for value and not in good faith and with notice of the contract of sate between Ramesh Prasad and others and the present petitioner. A further allegation in the plaint of the earlier suit, namely, the suit for specific performance of contract has been made that a substantial part of the consideration money under the contract had already passed and possession handed over to the petitioner pursuant thereto. The deed of agreement (or contract) is the one dated the 3rd December, 1979. The claim of the petitioner in this application is that after the execution of the deed of agreement he continued to remain in possession not qua tenant but dehors the tenancy in his own right as a transferee. To put it in legal parlance S.53A, T.P. Act was sought to be used as a sword and not a shield - as a weapon of offence rather than a shelter of defence under the law. That is entirely not permissible under the statutory and salutary provisions of S.53A, T.P. Act, which does not envisage eviction under the Control Act to be inhibited by filing of a prior suit by the adversary claiming a title on the basis of an alleged deed of agreement of sale and desirous of getting a decree for specific performance of contract therein. It is well settled that S.53A, T.P. Act can be used only as a shield and not as a sword. For all practical purposes the trial court has held that the matters directly and substantially in issue in the earlier suit are not directly and substantially in issue in the subsequent suit. It has, therefore, held that the suit did not come within the ambit and scope of S.10 of the Code.