GOPAL JI Vs. SHAILESH PATHAK

JUDGEMENT

(1.) The petitioner has filed this writ petition invoking jurisdiction of this Court under Article 227 of the Constitution of India for setting aside the order dated 03.03.2008, passed by Additional District Judge, Room No.3, Sultanpur in S.C.C. Suit No.2 of 2001 as contained in Annexure No.1 to the writ petition.

(2.) The brief facts are that the respondent No.2 executed an agreement to sell the property in dispute on 04.06.1990, for which, a sum of Rs.80,000/- was paid as earnest money. It was agreed that on 31.12.1995, the respondent No.2 will execute the sale-deed after receiving the balance amount of sale consideration, but the sale-deed was not executed as agreed. The wife of the petitioner, therefore, filed a Regular Suit No.11 of 1996 for specific performance of contract. However, the respondent No.2 delayed the hearing of the case and in order to put pressure upon the petitioner and his wife, filed a S.C.C. Suit No.2 of 2001 for ejectment and recovery of arrears of rent. The suit was contested by the petitioner mainly on the ground that that the agreement to sell has been executed by the respondent No.2 and a suit for specific performance was pending in the Court. It was also submitted that the petitioner did not commit any default in payment of rent. The suit filed by the wife of the petitioner for specific performance was decreed only in respect of earnest money. Feeling aggrieved by the aforesaid judgment, the petitioner's wife preferred Civil Appeal No.57 of 2006, which is also pending. The respondent No.2 in order to further delay the proceedings of appeal, filed an application for amendment at the appellate stage, which was rejected against which Writ Petition No.6140 of 2007 (MS) was filed. This Court while entertaining the aforesaid writ petition stayed further proceedings of civil appeal. Since, the respondent No.2 was bent upon to delay the proceedings of appeal, the petitioner filed an application under Section 10 of CPC with the prayer that the proceedings of S.C.C. Suit No.2 of 2001 be stayed till the disposal of Civil Appeal No.57 of 2006. The respondent No.2 preferred objections against the said application, but the learned court below rejected the said application by passing the impugned order.

(3.) The submission of the learned counsel for the petitioner is that the learned court below has committed manifest error of law in rejecting the application under Section 10 CPC although the fact in issue is substantially the same in both the cases. The disputed property in both the cases is identical. Learned counsel has referred to Section 10 CPC, which provides for stay of the suit. Section 10 Code of Civil Procedure is reproduced as under:-