PRAKASH CHAND SONI Vs. ANITA JAIN

JUDGEMENT

(1.) THIS is a revision by the defendant against the order by which his application under Section 10, CPC for stay of the suit has been rejected.

(2.) DEFENDANT Prakash Chand Soni was tenant of Kesharbai in a portion of house No. 303, Golganj, Chhindwara. She has sold this house to plaintiff Anita Jain by registered sale-deed dated 14-6-1995. She has filed the present Civil Suit No. 53-A of 1998 for eviction of the defendant on 13-1-1997 under various clauses in Section 12 (1) of the M. P. Accommodation Control Act, 1961. The defendant claims that Kesharbai by Agreement dated 17-5-1995 had contracted to sell this house to him and he has instituted Civil Suit No. 16-A of 1997 on 12-2-1997 in the Court of Ist Additional District Judge, Chhindwara for specific performance of the contract of sale against Kesharbai and the present plaintiff Anita Jain. In the eviction suit the evidence of both the sides has been recorded. In the suit for specific performance of contract the evidence has not yet commenced and it has been consolidated with another Civil Suit No. 1-A of 1999 filed by Anil Kumar against Kesharbai. The defendant submitted an application under Section 10, CPC in the eviction suit for stay of its proceedings until the decision of his suit for specific performance of contract and that has been rejected by the Trial Court.

(3.) AFTER hearing the learned counsel for both the sides and after going through the case law on this point this Court is of the opinion that the impugned order is correct. The suit for specific performance has been filed subsequent to the previously instituted eviction suit and, therefore, Section 10, CPC does not of its own force apply to the present case. That is fairly conceded by the learned counsel for the petitioner. He has however, argued that the trial of the suit can be stayed under Section 151, CPC and he has placed reliance on the decision of this Court in S. C. Bharat v. J. Jacob, 1977 JLJ-SN 82. On the other hand it is argued that the matter in issue in the suit for specific performance is not "directly and substantially in issue" in the suit for eviction. It is submitted that plaintiff Anita Jain has acquired title to the house on the basis of registered sale-deed executed by Kesharbai, who was admittedly the landlord of the defendant, and, therefore, as per Section 109 of the Transfer of Property Act there has been legal adornment and she is entitled to sue for eviction. The decisions in Trivenidevi v. Vijay Mohan Bose, 1976 MPLJ 163, Harikishan v. Rishi Kumar, 1982 MPWN Note 387, Kalyansingh v. Hafiz Abdul Ajij, 1979 MPWN Note 54, N. P. Tripathi v. Dayamanti Devi, AIR 1988 Patna 123 and Lachaman Nepak v. Badankayalu Syama, AIR 1989 Orissa 154, have been cited by the learned counsel for the respondent in support of the plea that the trial of the eviction suit cannot be stayed.