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2013 DIGILAW 886 (PAT)

Sunita Kumari v. Subodh Kumar

2013-07-26

CHAKRADHARI SHARAN SINGH

body2013
ORAL ORDER Heard learned counsel for the petitioner and learned counsel appearing on behalf of respondent. 2. The petitioner in the present application, under Article 227 of the Constitution of India, is aggrieved by the order dated 01.08.2011 passed by learned Sub Judge-I, Patna in Eviction Suit No. 62/ 2009 filed by her against the respondent by which the court below, in exercise of power under Section 10 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’), has stayed the further proceeding of the Eviction Suit No. 62/ 2009 (second suit) till disposal of Title Partition Suit No. 383 of 2008 (first suit) filed by the respondent. 3. There are certain facts which are not in dispute. 4. The petitioner is wife of Shri Pramod Kumar, who is son of Shri Saradchandra Prasad. The respondent, Subodh Kumar, is youngest son of the said Shri Saradchandra Prasad. The respondent, Subodh Kumar, filed a suit seeking partition vide Title Partition Suit No. 383 of 2008. In the said Title Partition Suit the petitioner is a party/ defendant No.4. Her husband, Pramod Kumar, is also one of the defendants in the said partition suit. In the said partition suit, a deed of gift, said to have been executed by the said Shri Saradchandra Prasad in favour of the petitioner dated 14.11.2007, is also under challenge. The suit property in partition suit includes the property which is subject matter of the registered deed of gift dated 14-11-2007. 5. The petitioner, subsequent to filing of the Title Partition Suit No. 383 of 2008, has filed the Eviction Suit No. 62/ 2009 in which the respondent, Subodh Kumar, is the defendant, who is plaintiff in Title Partition Suit No. 383 of 2008. The petitioner’s plea in the eviction suit is based on her claim of her title over the property on the strength of the said registered gift deed dated 14.11.2007. Requirement on the basis of personal necessity and non payment of rent are grounds taken in the eviction suit seeking eviction of the respondent from the suit premises. Both the suits are pending before learned Sub Judge-IV, Patna. 6. As has been noted above, at the very outset, these are the facts over which there is no dispute. 7. Requirement on the basis of personal necessity and non payment of rent are grounds taken in the eviction suit seeking eviction of the respondent from the suit premises. Both the suits are pending before learned Sub Judge-IV, Patna. 6. As has been noted above, at the very outset, these are the facts over which there is no dispute. 7. In such circumstances, the respondent, defendant in Eviction Suit No. 62/ 2009, filed a petition for staying the proceedings of the second suit, that is, eviction suit in view of Section 10 of the Code with the plea that the nature of the property in both the suits, parties in both the suits are same and the plaintiff’s claim in the second suit is based on the deed of gift, which is subject matter of the Title Partition Suit No. 383 of 2008 (first suit). The petition was allowed by the order dated 01.08.2011 which is impugned in the present application. 8. Learned counsel for the petitioner, assailing the impugned order, has submitted that scope of the two suits were different and in an eviction suit the court below has limited jurisdiction of deciding the relationship of landlord and tenant between the parties. He submits that decision in the eviction suit will not operate as res judicata for the first suit, that is, Title Partition Suit. He submits that the court below committed grave error by applying Section 10 of the Code and staying the proceeding of the Eviction Suit No. 62/ 2009. He has placed reliance upon various judgements of the Supreme Court as well of this court in support of his contention. 9. Learned counsel appearing on behalf of respondent, on the other hand, has submitted that the very basis of claim of the petitioner over the suit property in Eviction Suit No. 62/ 2009 is under challenge in Title Partition Suit No. 383 of 2008. He, therefore, submits that the matter in issue in both the suits is directly and substantially is same and, therefore, the court below rightly stayed the proceedings of the second suit in terms of Section 10 of the Code. He has also placed reliance on various pronouncements of the Supreme Court as well as of this court in support of his contention. 10. He has also placed reliance on various pronouncements of the Supreme Court as well as of this court in support of his contention. 10. Having taken note of the facts and rival submissions, in view of nature of order which I intend to pass in the present case, it is not required to deal with rival submissions made on behalf of the parties on the scope and applicability of Section 10 of the Code, in the facts and circumstances of the case. 11. There being no dispute about the fact that the gift deed, on the strength of which the petitioner is claiming her title over the suit property, in the Eviction Suit No. 62/ 2009 is under challenge in the first suit, that is, Title Partition Suit No. 383 of 2008. More particularly when the petitioner herself is a defendant in the said partition suit, I am of the opinion that both the suits should be tried together by the same court before whom the two matters are pending. I have reached to this conclusion keeping in mind the fact that while in the partition suit the said Shri Saradchandra Prasad himself is a defendant, his gift deed in favour of his daughter-in-law, who is plaintiff in Eviction Suit No. 62/ 2009, is under challenge. There shall be no stay on the proceedings of Eviction Suit No. 62/2009 as directed by the court below in the impugned order. 12. In the facts and circumstances of the present case, so as to minimize inconsistency in decision, I direct learned Sub Judge-IV, Patna to take up both the cases side by side treating them as analogous. 13. With this direction and observation, this writ application is disposed of.