LACHAMAN NEPAK Vs. BADANKAYALU SYAMA

JUDGEMENT

(1.) This application is by the successors-in-interest of the original tenant Govinda Nepak against the order dt. 4-8-1987 (Annexure-1) passed by the ChiefJudicial Magistrate, Berhampur, refusing to stay the hearing of an appeal filed by Govinda Nepak against the order of the House Rent Controller for his eviction from the premises in question. Although the impugned order does not discuss the merits of the grounds on which the prayer for stay was made, it was submitted that the appellant had prayed for staying the hearing of the appeal on two grounds, namely, (1) the Title Suit between the same parties was disposed of by the Chief Judicial Magistrate herself while she was the Subordinate Judge; and (2) pendency of the Title Appeal before the District Judge, Berhampur.

(2.) The first ground for stay has now become infructuous since the Chief Judicial Magistrate has in the meantime been promoted as an Additional District Judge. Therefore, the merit of the second ground, namely, the pendency of the Title Appeal, only has to be gone into for deciding the question of stay for which the facts of the case have to be briefly noticed.

(3.) Undisputedly, Kasinath Subudhi was the original owner of the house and Govinda Nepak was inducted as a tenant in the said house during his life time. On 12-7-1977, Kasinath sold the house by a registered sale deed to Badankayalu Syama Babu Subudhi, opposite party No. 1, who also sent a letter of attornment to the tenant. But since no rent was paid by him to the purchaser-landlord, he instituted an eviction proceeding in the court of the House Rent Controller, Berhampur, on 1-3-1978. A few days thereafter, the tenant Govinda Nepak instituted a Title Suit before the Subordinate Judge for declaring the sale deed in favour of opposite party No. 1 as invalid and for specific performance of an alleged oral agreement for sale dt. 8-3-1975 between Kasinath Subudhi and himself. The eviction case was allowed on 13-4-1983 against which an appeal was filed before the Chief Judicial Magistrate, Berhampur, by Govinda Nepak followed by a stay petition giving rise to this writ application as stated earlier.