Madhya Pradesh High Court
Rakshabai (Devi) vs Kunjbihari S/O Lt. Gajanand Swarnkar ... on 30 January, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
Misc. Petition No.744 of 2022
Rakshabai & Others
Vs.
Kunjbihari & Others
APPERANCE
Shri Rohit Bansal - Advocate for the petitioners.
Shri Pradeep Shrivastava - Government for the respondents.
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Reserved on : 09/01/2025
Delivered on : 30/1/2025
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This petition having been heard and reserved for orders, coming
on for pronouncement this day, the Hon'ble Shri Justice Milind
Ramesh Phadke pronounced/passed the following:
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ORDER
The present petition, under Article 226/227 of the Constitution of
India, has been filed by the petitioners against the order dated
30.10.2021 passed by Fourth Civil Judge, Class II, Sheopur in Case
No.COS No.5-A/2015; whereby, an application preferred by the
petitioners/defendants under Section 151 of the Code of Civil
Procedure, 1908 for stay of the present suit in lieu of earlier a Civil Suit
No.10-A of 2015 for specific performance of contract and permanent
injunction preferred by their father against present respondent No.1 and
06 others before the Second Additional District Judge, Sheopur which
though was dismissed vide judgment and decree dated 07.11.2016 but
there is an injunction granted in favour of the petitioners in first appeal
preferred against the said judgment and decree before this Court; thus,
in wake of the aforesaid pendency of the litigation between the parties
with regard to same subject matter, the prayer for staying of the present
suit was made, which was rejected.
2. Short facts of the case are that on 16.07.2010, father of the
petitioners, Sukhlal Jangam had instituted a Civil Suit No.10-A/2015
(new) for specific performance of an agreement to sale and permanent
injunction against respondent No.1/Kunjbihari and 06 others, before
second Additional District Judge, Sheopur which was dismissed vide
judgment and decree dated 07.11.2016; against which, father of the
petitioners Sukhlal Jangam had preferred a First Appeal No.215 of 2016
before this Court, which was admitted on 20.02.2019 and an injunction
granted in favour of the petitioners on 30.11.2016 has been continued
till disposal of the appeal vide order dated 20.02.2019 and the said
appeal is pending before this Court. During pendency of the first appeal,
as father of the petitioners i.e. Sukhlal Jangam had expired, therefore,
names of the petitioners alongwith their sisters, namely, Sunita Bai,
Nirmala Bai & Anita were substituted in his place, but sisters were not
made party in the present civil suit. On 24.03.2015, the present
respondents had instituted a Civil Suit No.5-A/2015 for eviction and
arrears of rent against the petitioners. In the aforesaid suit, the
petitioners had already filed written statement denying existence of
relationship of landlord and tenant and taking the similar stand taken in
the previous suit prayed for dismissal of the suit. On the basis of
pleadings of the parties, learned trial Court framed issues and fixed the
case for evidence of the respondents. At the time of preparation of the
case for evidence, it revealed to the petitioners that in both the civil
suits, common question was involved as the property as well as the
parties were the same, therefore, the present application under Section
151 of CPC for deferring of hearing of present civil suit came to be
filed. In reply, the respondents had contended that since the subject
matter of both the civil suits are different, the application deserved to be
rejected. Learned Trial Court after hearing the parties had dismissed the
application. Hence, the present petition.
2. Learned counsel for the petitioners while placing reliance on the
judgments passed by the Hon'ble Apex Court in the matters of Arjunlal
Bhatt Gothani & Others Vs. Girish Chandra Dutta & Another
reported in AIR 1973 SC 2256 and R. Kanthimathi Vs. Mrs. Beatrice
Xavier reported in AIR 2003 SC 4149 as well as the orders passed by
this Court in the matters of Dayaram vs. Omkar reported in 2000 (II)
MPWN 154 and Kalisah Raikwar v. Omprakash reported in 2013
(III) MPWN 68, had argued that once there is an agreement to sale
between a landlord and a tenant, the old relationship of any kind comes
to an end and even after the cancellation of such agreement to sale, the
status of tenant is not restored as such. In other words, on the date of
execution of the aforesaid agreement to sale, the status as that of
landlord and tenant changes into a new status as that of a purchaser and
a seller and though as on date, the suit for specific performance of the
contract between the parties had been dismissed but in First Appeal,
there is an injunction granted in favour of the petitioners and in the said
suit, the issue with regard to shop given on rent was also raised by the
present respondent No.1 which was held not to be proved vide issue
No.5 and further while discussing issue No.10, which was in relation to
whether the said agreement to sale was null and void was held not to be
proved which was the prayer at the instance of the present respondent
No.1, thus, when the issue with regard to landlord and tenant
relationship was already an issue raised by present respondent No.1 in
the suit preferred by the father of the petitioners for specific
performance of contract, the present suit, which is in relation to eviction
of the petitioners/defendants is required to be stayed.
3. It was further argued that in the earlier suit, the relief claimed
therein was with regard to specific performance of a contract and the
first appeal of the said matter is pending before this Court and if the
petitioners succeed in that appeal, they would be declared to be entitled
to get the contract for sale executed and thereafter, would become title
holder of the property and the said finding will then operate as res
judicata between the parties and in that event, the petitioners cannot be
treated as tenants nor respondent No.1/plaintiff can be treated as owner
of the property; thus, once the provisions of Section 10 of CPC are
attracted, the present suit deserves to be stayed till decision of the first
appeal.
4. On the basis of the aforesaid argument, it was prayed that since
the learned Trial Court erred in rejecting the application under Section
151 of CPC, therefore, the present petition deserves to be allowed and
while setting aside the order impugned herein, proceedings in the suit
are required to be stayed.
5. On the other hand, learned counsel for the respondents while
placing reliance on the judgment passed by the Hon'ble Apex Court in
the matter of My Palace Mutually Aided Co-operative Society Vs.
B.Mahesh & Others reported in 2022 LiveLaw (SC) 698 has argued
that the application under Section 151 of CPC was rightly rejected by
the learned Trial Court, as the said Section is not a substantive provision
that confers the right to get any relief of any kind, rather it is a mere
procedural provision which enables a party to have proceedings of a
pending suit conducted in a manner that is consistent with justice and
equity and as the law on this issue stands crystallized to the effect that
the inherent powers enshrined under Section 151 CPC can be exercised
only where no remedy has been provided for in any other provision of
CPC and when specific provision for staying of a pending suit in lieu of
earlier suit on similar cause of action between the same parties has been
decided by a Court is provided, the said application was not
maintainable; thus, invoking the inherent powers of the Court under
Section 151 of the CPC cannot be used in conflict of any other existing
provision or in case remedy has been provided for by any other
provision of CPC.
6. It was further argued that the prayer for stay of the present suit
has been made by the petitioners on the ground that on earlier occasion,
similar suit was fought between the same parties for the same cause of
action which is not true, as the earlier suit was for specific performance
of a contract which was dismissed, against which a first appeal is
pending and the present suit is for eviction under the provisions of M.P.
Accommodation Control Act, though between the same parties, but on a
different cause of action, therefore, even otherwise, if the said
application is treated to be under Section 10 of CPC, the same is not
maintainable, as no provision of Section 10 of CPC is attracted herein.
7. On the aforesaid premise, it was prayed that the present petition
be dismissed.
8. Heard counsel for the parties and perused the record.
9. The averments made by the petitioners in the application filed
under Section 151 of CPC are as under:
"आवदनधर 151 ज.द.
मन वर महद ,
1- ह क वद न पत वद ववरदध दव पश र वद गस भवन
बज म%ग ह'। पत वद वद क र दर नह% ह'।
2- ह क वद ववरदध पत वद वदगस भवन सम,नध म-
अन,
/ नध ववशशष2 पलन दव चल रह ह'। ज म0 उचच न ल
म- पथम अप9ल न.% 215/2016 पर दज< ह र वववदद भवन बज
सम,नध म- ददन% 30.11.2016 म- ससथत थव ,न रखन
आदश परर क थ इस आदश म0 उचच न ल न प/न:
,ढ र आदश ददन% 20.02.2019 दवर अप9ल%2 आर<र 39 रल
1 व 2 ज.द. आवदन सव9 र र अप9ल असन म तनर रण
वववदद भवन बज सम,नध म- थससथत ,न9 रहग9। क क
बज सम,नध म- थ ससथत हI इस रण ममल म- <वह चलJ
रखन अनवश ह'।
अ : पथन
< ह' क मनन9 उचच न ल म- लसम, अप9ल
तनर रण उक प रण L <वह सथगग रख9 ज ।"
10. From bare perusal of the application under Section 151 of CPC, it
could be seed that a simple prayer has been made therein in lieu of order
of injunction passed by this Court in First Appeal No.215 of 2016 that
the proceedings under the present suit which is for eviction, be stayed.
11. Nowhere in the application, ingredients of Section 10 of CPC
have been made or raised. In the entire application, it has not been
stated that since in the earlier suit which was though with regard to
specific performance of contract between the parties, the issue with
regard to tenancy was also dealt with and as the same has already been
decided by a competent Court and also since there is an injunction in
the first appeal with regard to possession, the present suit for eviction
till the pendency of First Appeal, deserved to be stayed rather a limited
prayer has been made therein that since there is an injunction granted in
favour of the petitioners, the present proceedings of the suit be stayed.
12. The judgments cited above by the counsel for the petitioners are
in relation to Section 10 of CPC, which according to this Court in the
present case cannot be said to be applicable.
13. From the arguments as has been raised by the counsel for the
petitioners, it seems that entire focus is on the provisions of Section 10
of CPC and when that is the case in the light of the judgment of the
Hon'ble Apex Court in the matter of My Palace Mutually Aided Co-
operative Society Vs. B.Mahesh & Others (supra), the said
application cannot be said to be maintainable, as in the said judgment, it
has been held that the inherent powers enshrined under Section 151
CPC can be exercised only where no remedy has been provided for in
any other provision of CPC. Further, it has been held that Section 151
CPC is not a substantive provision that confers the right to get any relief
of any kind rather it is a mere procedural provision which enables a
party to have the proceedings of a pending suit conducted in a manner
that is consistent with justice and equity.
14. Thus, this Court finds that though the learned Trial Court has
rejected the application on some different grounds, the said order in the
light of aforesaid discussion, does not deserve to be interfered with.
However, the petitioners would be at liberty to move appropriate
application for seeking appropriate relief as per law and in case, such
application is preferred, the same shall be decided by the learned Trial
Court in accordance with law without getting influenced by the order
impugned herein as well as the order passed by this Court.
15. With the aforesaid observation and liberty, the present petition is
dismissed and disposed of.
(Milind Ramesh Phadke)
Judge
PAWAN
pwn*
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KUMAR
postalCode=474001, st=Madhya Pradesh,
serialNumber=61B9D129971D2EA4FD4455ED49EA
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cn=PAWAN KUMAR
Date: 2025.01.30 18:30:23 +05'30'
