Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 850 (PAT)

Babban Sharma v. Awadhesh Kumar Prasad Sinha

2001-09-07

NAGENDRA RAI, P.N.YADAV

body2001
Judgment 1. This appeal is directed against the order dated 1.3.2001, passed by the learned Single Judge in First Appeal No. 680 of 1993, staying Eviction Suit No. 130 of 1992/57 of 1994, pending in the court of the Subordinate Judge III, Jehanabad, till disposal of the said first appeal. 2. The facts, which are necessary for disposal of the present appeal, are that the plaintiff-respondents first party filed Title Suit No. 104 of 199t for declaration that the sale-deeds executed on 30.9.1988 in favour of the defendant-appellants by the respondents 2nd party were illegal and void documents. They also prayed for extension of the period of lease after its expiry, which was executed by respondents second party prior to execution of sale deeds. The said suit was dismissed on 13.8.1993 against which the respondent first party filed the first appeal in this court, in which the impugned order has been passed. 3. The appellants after purchase filed Eviction Suit No. 130 of 1992/57 of 1994 before the Subordinate Judge, Jehanabad, for eviction of the respondents first party on the ground of expiry of the lease. The respondents-first party filed an application under section 10 of the Code of Civil Procedure (hereinafter referred to as the Code) for staying the eviction suit, which was dismissed by the trial court and the said order was upheld by the High Court in Civil Revision No. 155 of 1995 by order dated 17.7.1995. By the said order, while dismissing the revision application, this court observed that respondents first party, if so advised, might seek the relief in the first appeal (First Appeal No. 680/ 1993) pending in this court. Respondents first part challenged the said order of this court before the Apex Court in S.L.P. (Civil) No. 20389 of 1995 and the S.L.P. was also dismissed by order dated 22.9.1995. While dismissing the S.L.P., the Apex Court observed that if the two suits are identical as claimed by the respondents-first party then nothing prevented them from making an application as suggested by the High Court. 4. Thereafter, the respondents-first party filed an application under sections 10, read with 151 of the Code before the learned Single Judge and the learned Single Judge, after having held that the application under section 10 of the Code was not maintainable stayed the execution case in exercise of the power under section 151 of the Code. 5. 4. Thereafter, the respondents-first party filed an application under sections 10, read with 151 of the Code before the learned Single Judge and the learned Single Judge, after having held that the application under section 10 of the Code was not maintainable stayed the execution case in exercise of the power under section 151 of the Code. 5. Admitted facts are that the respondents-first party are not the owners of the land. They are in possession as tenants by virtue of a lease deed, the period of which has expired. In the meantime, the respondents-second party sold the disputed property to the appellants. 6. The claim of the respondents-first party is that they are entitled to extension of the period of lease, whereas, the claim of the appellants is that after expiry of the lease, the respondents-first party have to be evicted from the land in question. Respondents-first party have lost the matter before the trial court and their appeal is pending. 7. The question for consideration is as to whether in such a situation, the eviction suit is to be stayed or not? 8. First Appeals of 1975 are running on the daily cause list of the High Court. If the eviction suit pending in the court is stayed on the ground of pendency of the First Appeal in this court then there is no chance of the eviction suit being disposed of for the reason that the First Appeal will take more than 25 years for its disposal. In case the eviction suit is disposed of and the judgment goes against the respondents first party, they have remedy to file an appeal and they can also make a prayer for stay in the appeal arising out of the eviction suit itself. Thus, the respondents first party are not without any remedy in case of disposal of the eviction suit. No doubt, this court in exercise of the power under section 151 of the Code can grant stay but the very purpose of exercise of the power under section 151 of the Code is to do justice between the parties. In a case like the instant one, if the stay is granted to the eviction suit during the pendency of the first appeal, especially when the respondents-first party have lost their battle in the first court, in our view, that will not advance cause of justice. 9. In a case like the instant one, if the stay is granted to the eviction suit during the pendency of the first appeal, especially when the respondents-first party have lost their battle in the first court, in our view, that will not advance cause of justice. 9. In the result, this appeal is allowed and the order passed by the learned Single Judge is set aside.