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2016 DIGILAW 64 (RAJ)

Heeralal v. Vikas Tak

2016-01-11

ARUN BHANSALI

body2016
ORDER : Arun Bhansali, J. This writ petition has been filed by the petitioner aggrieved against the order dated 23.7.2015 passed by the trial court, whereby the application filed by the petitioner under Sections 10, 11 & Order 7, Rule 11 (a) read with Section 151 CPC has been rejected. 2. The petitioner filed application under various provisions before the trial court, seeking stay of the proceedings in the suit filed by Vikas Tak and in the alternative, it was prayed that as the suit does not disclose any cause of action, the same be dismissed. 3. The application was opposed by the plaintiff and the trial court after hearing the parties came to the conclusion that the conditions required for staying a subsequent suit were not available in the present case as while the earlier suit was filed by Ayodhya Devi and the present suit has been filed by Vikas Tak and therefore, parties in both the suits are not similar and therefore, provisions of Sections 10 & 11 CPC were not applicable. 4. So far as the plea raised under Order 7, Rule 11 (a) CPC is concerned, the trial court came to the conclusion that the said aspect was required to be decided during trial and consequently, rejected the application. 5. It is submitted by learned counsel for the petitioner that the suit was filed by Ayodhya Devi for eviction of the petitioner under the provisions of Section 106 of the Transfer of Property Act, 1882 ('the Act'). The subsequent suit has been filed by Vikas Tak and the boundaries of the suit property in both the case are similar and therefore, the subsequent suit filed by Vikas Tak based on sale deed executed by Ramchandra and Shyam Sunder deserves to be stayed. In the alternative, it was submitted that in any case both the suits were required to be consolidated and tried together and as the same pertained to the same property. 6. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 7. A bare look at the plaint filed by Smt. Ayodhya Devi and others clearly reveals that in para 2 a specific averment was made that the property in question was purchased by them along with one Dashrath Singh. 6. I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record. 7. A bare look at the plaint filed by Smt. Ayodhya Devi and others clearly reveals that in para 2 a specific averment was made that the property in question was purchased by them along with one Dashrath Singh. Dashrath Singh sold his share to Ramchandra & Shyam Sunder and between the plaintiff & the said Ramchandra and Shyam Sunder, the property has been partitioned. This property, which was with Ramchandra and Shyam Sunder, came to be transferred by them to Vikas Tak, who has filed the subsequent suit and therefore, from the averments made in the suit filed by Ayodhya Devi, it is clear that her suit does not pertain to the property regarding which Vikas Tak has filed a suit later in point of time and consequently, it cannot be said that both the suits pertained to the same property and/or that the subject matter of both the suits was same besides the fact that the parties are also different in both the suit, therefore, it cannot be said that the trial court committed any error in rejecting the application filed by the petitioner. 8. So far as the submissions made by learned counsel for the petitioner regarding consolidation of the suit are concerned, the prayer for consolidation of both the suits appears to be wholly misplaced as neither the subject matter of the suit is the same nor the cause of action can be same as though both the suits are for eviction based on notice under Section 106 of the Act, the cause of action being based on two separate notices, there is no question of consolidating the suits as prayed by the counsel. 9. In that view of the matter, there is no substance in the writ petition, the same is, therefore, dismissed.