KESHAV DEV Vs. ASHOK KUMAR

JUDGEMENT

(1.) THE petitioner, Keshav Dev, is aggrieved by the order dated 19.02.2014 passed by the Addl. Civil Judge (Sr. Div.) No. 1 Bari, District Dholpur whereby the learned Magistrate has allowed an application filed by the respondent under Section 10 CPC, and has stayed the proceedings in the Civil Suit No. 12/2011 till the disposal of the appeal in previous Civil Suit No. 9/2008.

(2.) THE brief facts of the case are that on 1.3.1986 the petitioner had let out his shop to the respondent. Initially in the year 2008, he filed a civil suit for eviction of the respondent. He had claimed that he had served a registered notice under Section 106 of the Transfer of Property Act on the respondent. However, the said suit was dismissed by judgment and decree dated 7.4.2011, inter alia, on the ground that the notice was not duly served on the respondent. Therefore, on 27.06.2011, the petitioner issued a fresh notice to the respondent under Section 106 of the Act. On the basis of fresh notice, he instituted a fresh suit (hereinafter referred to as "the second civil suit") for evicting the respondent from the shop in dispute. Meanwhile, although no decree was passed against the respondent, but as he was aggrieved by certain findings given by the learned trial court in its judgment and decree 7.4.2011 with regard to rental amount, he filed an appeal before the District Judge, Dholpur.

(3.) MR . Raj Kamal Gaur, the learned counsel for the petitioner, has contended that the learned Magistrate has misapplied Section 10 CPC. He has failed to understand the scope and ambit of Section 10 CPC. Relying on the case of Aspi Jal & Anr. v. Khushroo Rustom Dadyburjor [ : 2013(1) WLC (SC) Civil 105], the learned counsel has contended that for application of Section 10 of the Code, the entire subject matter of the two suits must be the same. However, in the present case, the controversy is not the same, between the second suit filed by the petitioner, and the appeal filed by the respondent. Moreover, although common issues may exist between the two proceedings, but mere existence of common issues would not bring the case under the ambit of Section 10 CPC. According to the learned counsel, the second suit is with regard to eviction of the respondent after service of notice under Section 106 of the Act, whereas the issue pending before the first appellate court is with regard to the actual rental amount. Thus, the issues are clearly distinguishable. Hence, the impugned order deserves to be set aside.