DR. N.P. TRIPATHI Vs. SMT. DAYAMANTI DEVI AND ANOTHER

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 Sec. 10of the Code of Civil Procedure (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 Sec. 10of the Code do not apply, inherent powers of the court can be invoked under Sec. 151of the Code. Hence this case before us. If the provisions of Sec. 10of 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 Sec. 10then only a question arises as to whether in such cases the inherent powers of the Court under Sec. 151of 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 Sec. 10of the Code and therefore, the impugned order suffers from jurisdictional infirmity. In the alternative be half -heartedly submitted that recourse may in such cases be taken to Sec. 151of 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 Sec. 10of the Code to such a case, the facts first. They follow.

(2.) 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 has made a defendant in the suit culminating in the impugned order. This suit, namely, Title Suit No. 87/83 is one for eviction under the summary procedure as mandated by law in Sec. 14of the 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 party nos. 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 sale 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 de hors the tenancy in his own right as a transferee. To put it in legal parlance Sec. 53Aof the Transfer of Property 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 Sec. 53Aof the 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 Sec. 53Aof the 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 Sec. 10of the Code.

(3.) It is now contended and it has been debated at the Bar by Learned Counsel for the petitioner that the matter in the earlier suit is directly and substantially in issue in the subsequent eviction suit and, therefore, the court, below has committed an error of jurisdiction in saying that Sec. 10was not applicable. It was contended that the question for determination in the present suit, namely, the eviction suit which is a subsequent one is with regard to the establishment of relationship of landlord and tenant between the parties which has a direct and substantial bearing upon the question involved in the earlier suit for specific performance of contract. I do not see any force in this contention. That is for a simple and obvious reason. So far as the suit for specific performance of contract is concerned it has got nothing to do with the question with regard to the relationship of landlord and tenant between the parties or even with regard to the ownership claimed under the deed of agreement of specific performance of contract for sale. Merely filing a suit for specific performance of contract does not confer or is founded upon a fact that a title has accrued in the property in question under the deed of agreement or contract for sale.. The title becomes perfect only if two conditions are fulfilled, namely, (1) all the ingredients for a decree to be passed in such suits are found by the court to be correct and (2) a decree for execution of a deed of sale is passed in favour of the plaintiff of that suit within a specified period failing which it shall be registered by and under the orders of the court of competent jurisdiction subject, of course, to the payment of full consideration money within the stipulated period as specified in the decree. And such a decree can only be passed, in the event a transfer has already been effected before the institution of the suit in favour of the third party who can claim by virtue of his own right if he establishes that he is entitled to the property in preference to the plaintiff being a bonafide purchaser for value and without notice of the contract (attracting the provision of caveat emptor). Therefore, the title to the property can pass to the plaintiff in a suit for specific performance of contract only after the fulfilment of the following conditions :