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2022 DIGILAW 1911 (ALL)

Kesheri Nandan Agrawal v. Indu Bajpayee

2022-12-03

UMESH CHANDRA SHARMA

body2022
JUDGMENT : 1. Heard Sri Arvind Srivastava, learned counsel for the revisionist and perused the record. None appears for the opposite party. Since service of notice upon the opposite party has been presumed to be sufficient on 26.11.2012 this Court is proceeding to decide the matter. 2. The defendant-revisionist has instituted this civil revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (in short ‘the Act, 1887’) to quash the order dated 28.07.2012 passed by Sri A.K. Pundir, ADJ, Court No.1, Jhansi in SSC Suit No.9 of 2011 by which he rejected the application 32(C) moved under Section 10 of Civil Procedure Code, 1908 (in short ‘CPC’) to stay the proceeding of the said suit. 3. In brief, facts of the case are that the plaintiff Smt. Indu Bajpayee filed an SCC Suit No.9 of 2011 against the revisionist-defendant on the ground that he is a defaulter tenant of house no.251 (present no.388) situated at Mohalla Itwari Ganj, Jhansi at the rate of Rs.1,500/- monthly rent. He has not paid the rent in spite of repeated demand since 12.11.2006. Nar Narayan Das Srivastava son of Sri Thakur Prasad @ Thakur Das was the owner of the house in suit from which she purchased land for a consideration of Rs.40,000/- and had obtained possession thereon and started payment of house tax etc. Rashan Card was also issued at the address of the house in question. Plaintiff's father-in-law had also died in this house and the plaintiff had also taken loan and repaid it. Later on plaintiff constructed her residential house in the area of Jar Pahad and had given the house in suit at the monthly rate of rent of Rs.1,500/-to the defendant. Sometimes defendant paid the rent but since 12.11.2006 he stopped to pay the rent. Hence, a notice on 11.12.2009 for demand of money and termination of tenancy was given and was sent and served upon the defendant which was replied mentioning false facts. At the time of issuance of notice there was arrears of four months' rent upon the defendant and he did not pay any rent to the plaintiff within one month from the date of receipt of notice. Apart from this the defendant refused to accept the plaintiff as owner of the house in suit. At the time of issuance of notice there was arrears of four months' rent upon the defendant and he did not pay any rent to the plaintiff within one month from the date of receipt of notice. Apart from this the defendant refused to accept the plaintiff as owner of the house in suit. Thus, the defendant has committed the offence under Section 20(A) and (F) of the UP Act No.13 of 1972. Since the defendant has not paid rent and is a defaulter and has also refused the plaintiff to be land-lord, therefore, the defendant is liable to be evicted. 4. According to the plaintiff since 12.11.2006 to 11.12.2009, the rent of more than three years have become time barred and Rs.76,500/-rent for 51 months is due against the defendant. According to the plaintiff since 12.01.2011 Rs.2,000/-per month as damages is also liable to be recovered from the defendant. On the basis of cause of action valuing the suit and after giving court fees, the plaintiff has filed the suit for eviction and realization of unpaid amount of rent and for illegal use and occupation of house after expiry of the period of notice. 5. The defendant filed written statement and almost denied the averments made in the plaint and in addition to that has said that plaintiff is neither the owner of the house in suit nor the defendant is tenant at the rate of Rs.1,500/-per month of the house in suit. There is no relation of land-lord and tenant between the parties. The defendant is as owner and in possession since 2003. Earlier it was the house in dilapidated condition upon which plaintiff had taken loan and had pledged the house. Plaintiff and her husband said to the defendant to sell the house in suit. In furtherance to that the parties entered into an agreement to sell the house in suit for Ra.2,35,000/- out of which the defendant provided Rs.1,35,000/- in cash on 06.04.2003 and under the alleged oral agreement for sale he got the possession of the house in suit. 6. It was settled between the parties that plaintiff shall repay the loan of the bank and after taking the house back and after getting the rest of the amount i.e. Rs.1,00,000/- she will execute sale deed in favour of the defendant. 6. It was settled between the parties that plaintiff shall repay the loan of the bank and after taking the house back and after getting the rest of the amount i.e. Rs.1,00,000/- she will execute sale deed in favour of the defendant. Since the defendant was in the need of residence, therefore, with the permission of the plaintiff, defendant expended Rs.2,00,000/- to renovate the house in suit and constructed latrine, bathroom and kitchen and started living therein with his family as owner of the house. The defendant has always been ready to get the sale deed executed according to the oral agreement for sale. Since there is no relation of land-lord and tenant between the parties but the relation is as seller and buyer, hence the court has no jurisdiction to try the case. Plaintiff's husband, Brijendra is necessary party and the case is barred by non-joinder of necessary party. When plaintiff and her husband threatened on 24.02.2011 to forcefully dispossess the defendant, he filed an Original Suit No.150 of 2011 (Kesheri Nandan Agrawal Vs. Smt. Indu Bajpayee and others) in the Court of Civil Judge (Junior Division), Jhansi, therefore, this case being subsequent to the case of the defendant is barred and is liable to be stayed under Sections 10 and 151 CPC. The case is also barred by estoppel and acquiescence and is liable to be dismissed. 7. During the course of hearing defendant moved an application 32(C) to stay the proceeding of this case under Section 10 CPC on the grounds mentioned in the written statement. After hearing both the parties the court below concluded that the case of the defendant i.e. Original Suit No.150 of 2011 is for permanent injunction. The matter in issue is not the same in both the cases. Both the cases relate to the courts of different jurisdiction. This case is not liable to be stayed under Section 10 CPC and accordingly rejected the application. 8. Being aggrieved the petitioner has preferred this revision. 9. The opposite party land-lord filed a counter affidavit dated 16.12.2012 and denied the allegations mentioned in the revision. In addition to that the averments of the plaint has been reiterated and denied that there has been an oral contract for sale of the house. It is absolutely false and incorrect. 8. Being aggrieved the petitioner has preferred this revision. 9. The opposite party land-lord filed a counter affidavit dated 16.12.2012 and denied the allegations mentioned in the revision. In addition to that the averments of the plaint has been reiterated and denied that there has been an oral contract for sale of the house. It is absolutely false and incorrect. The answering respondent did not take a single penny as advanced from the revisionist for sale of the house in question. No question of any part performance arises. 10. It is further stated that with an evil motive the revisionist filed the suit i.e. Suit No.150 of 2011 for permanent injunction to harass the land-lord. That case has no concern with the present suit for eviction and payment of rent and house tax. The revisionist had tried to misguide this Court. The application filed by the revisionist under Section 10 CPC was misuse of process of law. Both the cases are different in nature and have no connection with each other. Both suits are different and triable by the different courts and in both the cases the prayer is not the same. The trial court had rightly rejected the application under Section 10 CPC. There is no infirmity in the impugned order. The interim ex parte order dated 20.09.2011 passed by this Court be vacated. Examination-in-chief of the respondent has been recorded in the court below. Copy of the evidence produced as affidavit has been annexed as annexure-CA-1. The defendant has requested to dismiss the revision. 11. Contrary to that the revisionist has filed rejoinder affidavit dated 24.12.2013 and has reiterated the contents of his suit and the revision and has said that the decree passed in the earlier suit will operate as res judicata. Hence, the subsequent suit is liable to be stayed. The opposite party is no more remains land-lord after the agreement. The impugned order is not in consonance with the provisions of Section 10 CPC. No ground for vacating the interim order passed by this Court arises. Hence, the revision be allowed. 12. It is admitted that the property in suit is an immovable property which can only be transferred through registered deed as envisaged in Section 54 of Transfer of Property Act and Section 17 of the Indian Registration Act. About the immovable property no oral agreement or sale is permissible. Hence, the revision be allowed. 12. It is admitted that the property in suit is an immovable property which can only be transferred through registered deed as envisaged in Section 54 of Transfer of Property Act and Section 17 of the Indian Registration Act. About the immovable property no oral agreement or sale is permissible. Prima facie no case of title appears to be involved between the parties. The defendant revisionist neither filed any suit for specific performance of contract nor any oral transaction or agreement for sale is permissible in respect of immovable property. Original Suit No.150 of 2011 has been filed under the Specific Relief Act by the defendant whereas this suit has been filed under the Act, 1887. Hence, the jurisdiction of both the courts are quite different. It is to be ascertained that if a suit is for permanent injunction and another suit is SCC suit whether in that case subsequent suit can be stayed under Section 10 CPC. Section 10 CPC reads as under:- "10. Stay of suit.—No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India have jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation.—The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.'' 13. In Kanhaiya Lal Vs. Draupadi, AIR 1992 MP 88 it is held that stay of a later suit until decision in earlier suit is a mere rule of procedure. 14. In Lachaman Vs. Badan Kayalu, AIR 1989 Orissa 154 it is held that suit for eviction of tenant cannot be stayed till disposal of suit for specific performance of contract between the tenant and the land-lord’s predecessors-in-interest. 15. In Karri Satya Narayana Vs. Pichika, 1996 AIHC 2642 (AP) it is held that Section 10 CPC cannot be invoked in two suits, one for specific performance of contract and another by the adversary for ejectment and damages. 15. In Karri Satya Narayana Vs. Pichika, 1996 AIHC 2642 (AP) it is held that Section 10 CPC cannot be invoked in two suits, one for specific performance of contract and another by the adversary for ejectment and damages. 16. In Aspi Jal and another Vs. Khushroo Rustom Dadyburjor, (2013) 4 SCC 333 it is held that for application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. 17. In this case it is not so. There is no evidence to establish that the court in which Original Suit No.150 of 2011 is pending is also competent to try with the cases of small cause courts. The proceeding of small cause courts is summary in nature. Hence, this Court is in conformity with the finding recorded by the lower court that on the basis of pendency of Original Suit No.150 of 2011 the SCC suit is not liable to be stayed under Section 10 CPC. 18. The option was open to the revisionist to move an application under Section 23 of the Act, 1887 that since the question of title is involved, therefore, before deciding the question of title this SCC suit cannot be prosecuted any more. He may also produce evidence and may establish that there was no relation of land-lord and tenant between the parties or it had been broken after entering into the agreement and if the SCC Court finds that the serious question of title is involved, it may drop the proceeding but so far as the applicability of Section 10 CPC is concerned, this Court is of the considered view that this SCC revision cannot be stayed on account of pendency of an original suit previously instituted by the defendant. 19. On the basis of above, this Court is of the view that this revision lacks merit and is liable to be dismissed. 20. Accordingly, this revision is dismissed with costs. 21. A copy of this order be sent to the Court of ADJ-I, Jhansi who shall proceed with the SCC suit in accordance with law.