KSHITISH CHANDRA BHOWMICK Vs. HARAKCHAND BETALA

JUDGEMENT

(1.) A suit for eviction filed by the petitioner has been stayed by the learned trial Court till disposal of an appeal arising out of T. S.No. 5/71 which had been filed by pro forma defendant 7 for declaration of 3/5th share in a property, which is the subject matter of the eviction suit also, and for partition by metes and bounds. The stay has been granted on a petition filed under S.10 of the Civil P.C. by pro forma defendant 7. Feeling aggrieved, the plaintiff has approached this Court in revision.

(2.) As S.10 relates to the jurisdiction of the Court to proceed with the trial, and is also related to the question of res judicata, as would be seen later, any wrong decision would undoubtedly attract the provision of S.115 of the Code, as to stay a suit where it could not have been amounts to failure to exercise jurisdiction vested in the Court. Let it therefore, be seen whether the impugned order is maintainable in law or not.

(3.) The present suit out of which this revision arises is for eviction of defendants 1 and 2. It has been clearly stated in the plaint that pro forma defendant 7 was one of the heirs of late Kedar Bhowmick. As he did not, however, join hands with the plaintiff in ejecting the main defendants, he was impleaded as a pro forma defendant. A plea was, however, taken by this defendant that the suit was not maintainable at the behest of the plaintiff alone, who was not the absolute owner of the premises. Earlier, this defendant had instituted a suit for declaration that he along with two daughters of late Kedar Bhowmick was entitled to 3/5th share in the property; and the plaintiff and another daughter who were impleaded as defendants in T. S.No. 5/71 could take only 2/5th share. This suit was dismissed, but an appeal was pending in the Court of District Judge when the petition under S.10 was filed. Though this appeal has also been subsequently dismissed, a second appeal to this Court is yet to be disposed of. On these facts, it has been held by the learned trial Court that the points involved and the schedules in both the suits are the same. It has also been opined that "issues in both the suits directly and substantially the same". Being of this view, the stay as prayed for has been granted.