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2010 DIGILAW 1420 (CAL)

Md. Shamim Khan v. Nazir Ahmad

2010-12-09

PRASENJIT MANDAL

body2010
JUDGMENT Prasenjit Mandal, J. 1. THIS application is at the instance of the defendant and is directed against the order no.45 dated June 11, 2008 passed by the learned Civil (Senior Division), Asansol in Title Suit No.115 of 2002 thereby rejecting an application under Section 10 of the Code of Civil Procedure. 2. THE short fact is that the plaintiffs/opposite parties instituted a title suit being the Title Suit No.10 of 1998 before the learned Assistant District Judge, Asansol praying for specific performance of contract. That suit was disposed of directing the defendant to pay a sum of Rs.1,70,000/- along with interest in respect of the money taken. The defendant preferred an appeal before the Hon'ble High Court, Calcutta which is registered as F.A.T. No.3445 of 2002. That appeal is still pending. Subsequently, the defendant of that suit filed a title suit being the Title Suit No.115 of 2002 praying for eviction and recovery of possession against the plaintiffs of the title suit no.10 of 1998. Now, the contention of the defendant of the Title Suit No.115 of 2002 is that since he instituted the suit for specific performance of contract and the defendant of that suit preferred an appeal and the subject matter of the subsequent suit is absolutely dependent on the verdict of the said appeal, so, the subsequent suit should be stayed till the disposal of the appeal pending before the Hon'ble High Court, Calcutta. The application to that effect was rejected on contest by the impugned order. Being aggrieved, the defendant has come up with this application. Now the point for consideration is whether the impugned order can be sustained. 3. UPON hearing the learned Advocate of both the sides and on perusal of the materials on record, I find that the earlier suit being Title Suit No.10 of 1998 was filed by the present petitioner against the opposite party nos. 1 and 2 with alternative prayer for return of the earnest money. The learned Trial Court disposed of that suit directing the opposite party nos.1 and 2 herein to pay a sum of Rs.1,70,000/-. Being aggrieved by that judgment and decree, the opposite party nos.1 and 2 preferred an appeal being F.A.T. No.3445 of 2002 before the Hon'ble High Court which is still pending. Subsequently, the opposite parties herein instituted the Title Suit No.115 of 2002 for ejectment and recovery of possession against the petitioner. Being aggrieved by that judgment and decree, the opposite party nos.1 and 2 preferred an appeal being F.A.T. No.3445 of 2002 before the Hon'ble High Court which is still pending. Subsequently, the opposite parties herein instituted the Title Suit No.115 of 2002 for ejectment and recovery of possession against the petitioner. 4. UPON consideration the nature of the two suits, I find that the earlier suit was one for specific performance of a contract with regard to the immovable property, as described in the schedule to the plaint. As regards the subsequent suit, the suit property remains the same, but, in the earlier suit there are only two defendants, namely, Md. Nazir Ahmed and Md. Naushad. In the subsequent suit, beside the above defendants, there are other parties to the suit. The nature of the two suits cannot be considered as same because the earlier one was for specific performance of a contract and the subsequent suit was for recovery of possession. Moreover, the earlier suit was disposed of by the learned Trial Judge and now, an appeal is pending before the Hon'ble Court, Calcutta. Therefore, the field of the two suits are also quite different to consider different aspects of the matter. Section 10 of the C.P.C. applies where two suits are pending in which the matter in issue is directly and substantially same. This being the position, the learned Trial Judge has discussed the relevant provisions of Section 10 of the C.P.C. and the nature of the two suits in details in the impugned order. The matter in issue and the parties of the two suits cannot be said to be the same and one. I find that the learned Trial Judge has arrived at a correct conclusion in rejecting the application under Section 10 of the C.P.C. The order impugned is not perverse at all. There is nothing to interfere with the impugned order. This application is, therefore, without merits and it should be dismissed. 5. ACCORDINGLY, this application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.