KHARATI LAL SARAF Vs. KISHORI LAL

JUDGEMENT

(1.) THIS revision petition is directed against an order passed by Sub Judge, Kathua on 4.3.1991 whereby he has dismissed an application filed by the defendants for staying the eviction suit under trial The petitioner -defendant wanted this suit to be stayed because a suit for partition was pending adjudication. In the out -set, it may be noted that the suit sought to be stayed has been instituted much earlier than the one which is for partition. The learned Subordinate Judgeâ„¢s order is elaborative and reasoned.

(2.) I have heard the learned counsel for the parties at length. The grounds taken in the revision by Mr. Sharma for assailing the impugned order are as under: - i) That even though provisions of section 10 of CPC would not be applicable, court could have exercised its power in terms of section 151 of the CPC because the inherent powers are complementary to the statutory powers, The trial court was, therefore, wrong in dismissing the application on the anvil of section 10 of CPC only. ii) That the respondent No: 1 who had instituted the eviction suit was not the exclusive owner of the property. In the event of a subsequent suit for partition having been instituted, there was a possibility of his right to file the suit being denied. iii) That the order impugned, if allowed to remain in operation would cause a great deal of failure of Justice and irreparable injury to the petitioner,

(3.) MR . Sharma supported his contention by a judgment of Orissa High Court in case Banshidharnaik & Ors. Vs. Laxmi Prasad Patnaik reported in AIR. 1966 Orissa page 53. This judgment has in fact been based on an earlier one reported in AIR 1962 S.C, Page 527. The ratio laid down in these rulings is that the court was within its powers u/s 151 of CPC to order stay of suit when the provisions of section 10 of CPC would not apply. In this authority, the place of institution of the suit was different and as such the court has observed that there was no other provision which would be in conflict with the grant of stay u/s 151 of CPC.