ONKAR GANPAT KOKATE Vs. UTTAMCHAND HEERALAL JAIN

JUDGEMENT

(1.) This Civil Revision Application is against the order of II Jt. C.J. (S.D.) Akola by which the Trial Court has rejected the application for staying the suit. The applicant therein and the defendant in the said suit has averred that the suit was for the Recovery of the consideration and also for warpages. There is an averment in the suit that this defendant did not have the title of the property and he has ventured to sell the said property to the plaintiff. Since he did not have the title over the property, he was not in a position to affect the sale deed thereof and therefore, the Civil Suit is for" recovery of earnest money and the damages. The defendant points out in the application that on the similar allegation a complaint has been filed by the plaintiff against the defendant before the 4th Judicial Magistrate, First Class, Akola. Accordingly, the defendant averred that, if he was required to file written statement in tire civil suit, he would be put to an embarrassing position in so far as his defence in the criminal case is concerned. He also averred that he would be put to a prejudice, if he were to disclose his defence in the written statement. In short, the defendant alleged that the allegations made in the criminal complaint are identical to the allegations made in the civil plaint and on that count the civil suit is liable to be stayed. Mr. Mohta, relying on unreported judgment of this Court dated 7.9.1979 in Civil Revision Application No. 172/1979 contended that where the allegations are common and where the defence in the criminal matters was likely to be embarrassed or prejudiced by the disclosure of the defence in the civil suit, the civil suit was liable to be stayed at least, till the defence in the criminal trial was disclosed. In that view of the matter, Mr. Mohta contended that the matter was liable to be stayed since the allegations in the civil suit and the criminal complaint are same. Such possibility is not there at all in the present case. While in the criminal complaint, the question to be decided would be as to whether the accused had by false representation caused a wrongful loss to the complainant and wrongful gain to himself, the question to be decided in the civil suit is as to whether he was liable to return the consideration. Whether the consideration was obtained by fraud or cheating is the question into the civil suit. In that view of the matter, there would be no likelihood of any embarrassment or prejudice to be caused to the defendant or as the case may be to the accused. In that view of the matter, the judgment relies upon by Mr. Mohta is not applicable. In that case there was likelihood of such prejudice to be caused to the accused therein, but such is not the position in the present case.

(2.) There is no merit in this civil revision application and hence it is dismissed. No costs Revision dismissed.