RAKSHABIA Vs. KUNJBIHARI

JUDGEMENT

(1.) The present petition, under Article 226/227 of the Constitution of India, has been filed by the petitioners against the order dtd. 30/10/2021 passed by Fourth Civil Judge, Class II, Sheopur in Case No.COS No.5-A/2015; whereby, an application preferred by the petitioners/defendants under Sec. 151 of the Code of Civil Procedure, 1908 for stay of the present suit in lieu of earlier a Civil Suit No.10-A of 2015 for specific performance of contract and permanent injunction preferred by their father against present respondent No.1 and 06 others before the Second Additional District Judge, Sheopur which though was dismissed vide judgment and decree dtd. 7/11/2016 but there is an injunction granted in favour of the petitioners in first appeal preferred against the said judgment and decree before this Court; thus, in wake of the aforesaid pendency of the litigation between the parties with regard to same subject matter, the prayer for staying of the present suit was made, which was rejected.

(2.) Short facts of the case are that on 16/7/2010, father of the petitioners, Sukhlal Jangam had instituted a Civil Suit No.10-A/2015 (new) for specific performance of an agreement to sale and permanent injunction against respondent No.1/Kunjbihari and 06 others, before second Additional District Judge, Sheopur which was dismissed vide judgment and decree dtd. 7/11/2016; against which, father of the petitioners Sukhlal Jangam had preferred a First Appeal No.215 of 2016 before this Court, which was admitted on 20/2/2019 and an injunction granted in favour of the petitioners on 30/11/2016 has been continued till disposal of the appeal vide order dtd. 20/2/2019 and the said appeal is pending before this Court. During pendency of the first appeal, as father of the petitioners i.e. Sukhlal Jangam had expired, therefore, names of the petitioners alongwith their sisters, namely, Sunita Bai, Nirmala Bai and Anita were substituted in his place, but sisters were not made party in the present civil suit. On 24/3/2015, the present respondents had instituted a Civil Suit No.5-A/2015 for eviction and arrears of rent against the petitioners. In the aforesaid suit, the petitioners had already filed written statement denying existence of relationship of landlord and tenant and taking the similar stand taken in the previous suit prayed for dismissal of the suit. On the basis of pleadings of the parties, learned trial Court framed issues and fixed the case for evidence of the respondents. At the time of preparation of the case for evidence, it revealed to the petitioners that in both the civil suits, common question was involved as the property as well as the parties were the same, therefore, the present application under Sec. 151 of CPC for deferring of hearing of present civil suit came to be filed. In reply, the respondents had contended that since the subject matter of both the civil suits are different, the application deserved to be rejected. Learned Trial Court after hearing the parties had dismissed the application. Hence, the present petition.

(3.) It was further argued that in the earlier suit, the relief claimed therein was with regard to specific performance of a contract and the first appeal of the said matter is pending before this Court and if the petitioners succeed in that appeal, they would be declared to be entitled to get the contract for sale executed and thereafter, would become title holder of the property and the said finding will then operate as res judicata between the parties and in that event, the petitioners cannot be treated as tenants nor respondent No.1/plaintiff can be treated as owner of the property; thus, once the provisions of Sec. 10 of CPC are attracted, the present suit deserves to be stayed till decision of the first appeal.