SHRI BHARAT BHUSHAN JAIN Vs. B M SHAH

JUDGEMENT

(1.) THIS first appeal from order by Defendants is directed against the order dated 21 -9 -1978 passed by Civil Judge, Jhansi in suit No. 39 of 1978 staying till further orders, further proceedings pending before the Prescribed Authority in case No. 86 of 1978 Bharat Bhushan v. B.M. Shah.

(2.) NECESSARY facts which are relevant for deciding the controversy raised in the present appeal briefly stated are that Sri B.M. Shah is a partner in the firm M/s. B.M. Shah. He filed suit No. 39 of 1978 in the court of Civil Judge, Jhansi claiming specific performance of an agreement dated 9 -7 -1973, according to which the Defendants had Undertaken to lease out the building mentioned in the agreement to M/s. B.M. Shah the Plaintiff. According to the Plaintiff, originally Sri Manno Lal Jain and Smt. Moonga Devi the predecessors -in -interest and the Defendants were the landlords of the building known as Minerva Cinema building which they had let out to one K.M. Modi, some time before the year 1952. Subsequently, there was some litigation between the parties in which a compromise was arrived at, as a result of which the Plaintiff became the tenant of the building under a lease deed which was due to expire on 31 -7 -1973. Before expiry of the lease, the parties entered into a fresh agreement on 1 -7 -1973, according to which the Defendants were to execute a fresh lease in favour of the Plaintiff for a period of 20 years on terms and conditions mentioned therein. As, however, at that time an embargo had been placed on registration of lease deeds, both the parties undertook to execute the lease deed and to get it registered within three months of the reopening of registration or obtaining permission from the District Magistrate, Jhansi. Accordingly, the Plaintiff, as agreed between the parties, continued to run his cinema business in the building even after 31 -7 -1973 even though no fresh lease deed as contemplated by the agreement dated 9 -7 -1973 had been executed. After ban on registration of lease deeds was lifted by the State Government, the Plaintiff gave a notice to the Defendants, on 4 -6 -1977 requiring them to take necessary steps to execute and to get the lease deed registered as was stipulated in the agreement dated 9 -7 -1973. He also forwarded a draft of the lease deed which he wanted to be executed by the Defendants vide his letter dated 20 -6 -1977. However, on the same day, i.e. 20 -6 -77 one Sri R.K. Srivastava, Advocate, acting on behalf of the Defendants gave a notice to the Plaintiff stating that the Defendants were not prepared to let out the building to the Plaintiff and, that the Plaintiff should vacate the premises failing which legal proceedings for his ejectment would be taken. The Defendants followed up the aforesaid notice by filing an application under Section 21 of the U.P. Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 before the Prescribed Authority on 4 -11 -1977 in which they prayed that the premises in question be released inasmuch as they bonafide needed it for running the cinema business themselves. Plaintiff then filed suit No. 39 of 1978 on 20 -7 -1978 for a decree for specific performance of the agreement dated 9 -7 -1973. On 20 -7 -1978 he also moved an application purporting to be one under Order 39 Rules 1 and 2 and Section 151 of the Code of Civil Procedure and prayed that the Defendants be restrained from prosecuting the proceedings in case No. 86 of 1977 pending before the Prescribed Authority Jhansi during the pendency of the suit in the civil court.

(3.) BEING aggrieved, the Defendants have come up in appeal before us. Learned Counsel appearing for them submitted that the order under appeal is vitiated and deserves to be set aside on following grounds: