Karnataka High Court
M/S. Deen Perfumery Company vs Naeemuddin Gafar on 20 August, 2018
Equivalent citations: 2018 (4) AKR 700, (2019) 1 ICC 928
Author: Vineet Kothari
Bench: Vineet Kothari
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF AUGUST, 2018
BEFORE
THE HON'BLE Dr.JUSTICE VINEET KOTHARI
W.P.No.40591/2017 (GM-CPC)
BETWEEN
M/S DEEN PERFUMERY COMPANY
A REGISTERED PARTNERSHIP FIRM
WITH ITS OFFICE AT NO
BAZAAR STREET CROSS,
NEELASANDRA,
BANGALORE-560 047.
REPRESENTED BY ITS MANAGING PARTNER,
MR.MOHAMMED SHAFIUDDIN.
...PETITIONER
(By Mr. RAHUL CARIAPPA K.S. ADV.,)
AND
NAEEMUDDIN GAFAR
SON OF LATE P.A. GAFFAR,
RESIDING AT NO.19,
216, LOKKONDWALA CHAWL,
1ST FLOOR, GRANT ROAD EAST,
MUMBAI -08.
PRESENTLY RESIDING AT:
NO.28, XAVIER LAYOUT,
GROUND FLOOR, 2ND MAIN ROAD.
BANGALORE-560 047.
...RESPONDENT
(By Mr. S.G. MUNISWAMY GOWDA, ADV.,)
Date of Order: 20.08.2018 W.P.No.40591/2017
M/s. Deen Perfumery Company Vs. Naeemuddin Gafar.
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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO CALL FOR THE
RECORDS ON THE FILE OF THE V ADDITTIONAL SMALL
CAUSES JUDGE AND XXIV ACMM COURT OF SMALL CAUSES
MAYO HALL UNIT, BANGALORE, SCCH 20 IN SC NO.15264/2015
AND AFTER GOING THROUGH THE LEGALITY, PROPRIETY OR
OTHERWISE OF THE SAME SET ASIDE THE ORDER
DTD:18.2.2017 PASSED THEREIN AS PER ANNEXURE-A
PRODUCED HEREWITH.
THIS WRIT PETITION COMING ON FOR PRLY. HEARING IN
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Mr. K.S.Rahul Cariappa Adv. for Petitioner/defendant Mr. S.G. Muniswamy Gowda, Adv. for Respondent/plaintiff The petitioner/defendant-M/s.Deen Perfumery Company has filed this writ petition under Article 227 of the Constitution of India aggrieved by the order dated 18.02.2017 passed by the learned Trial Court in S.C.No.15264/2015 (M/s. Deen Perfumery Company
-vs- Mr.Naeemuddin Gaffar) rejecting the application of the defendant/petitioner u/S.10 of CPC for staying the trial of this suit in view of previously instituted suit for specific performance namely O.S.No.25246/2010, which is pending in a different Court i.e., before the 28th Additional City Civil Judge, Bangalore (CCH-29).
Date of Order: 20.08.2018 W.P.No.40591/2017 M/s. Deen Perfumery Company Vs. Naeemuddin Gafar. 3/7
2. The relevant reasons given in the impugned order for ready reference:
"12. Applying the law aforesaid to this case are three similar and subject matter in the suit does not covered, entire property claimed in OS No. 25246/2010. Cause of action in the above case and OS No.25246/2010 are different. Issues are different. If Hon'ble Court in OS No.25246/2010 chose to decree the suit for specific performance of contract and consequential relief of permanent injunction not to alienate in alternative to recover of the sale consideration, the defendant in possession of suit schedule property as tenant he cannot be evicted by due process of law i.e., through this case.
13. Prima facie the defendant has made out his right only for specific performance to get sale deed registered from the defendant herein. If this application is allowed to avoid multiplicity of proceeding, it will go against object Sec.10 of CPC, laid down in SCC P-259-60 para 8 (National institute of Mental health and Neuro sciences Vs C.Parameshwara) Date of Order: 20.08.2018 W.P.No.40591/2017 M/s. Deen Perfumery Company Vs. Naeemuddin Gafar.4/7
14. In view of aforesaid decisions this case does not get through fundamental test to attract Sec.10. Though subject matter in the both suits are part and parcel of the same party. Issues are not directly and substantially in issues previously instituted suit. There is no identity of the matter in issue in both cases. The nature of the suit and relief claimed are different. Even otherwise the defendant contended that the suit in OS No.25246/2010 is at fag end of stage of argument. Hence, he is entitled for early disposed. Therefore, no prejudice will be caused to defendant, if IA is rejected. In this case, the plaintiff evidence is not yet commenced. The defendant No.1 needs to get adjudication of his right before, he could not exercise it. Unless and until, he is in a status of tenant, as far this case is concerned. Accordingly, I answer the point in negative.
15. Point No.2: In view of the above discussion, I proceed to pass following:
ORDER The application filed U/s 10 of CPC is hereby dismissed."
Date of Order: 20.08.2018 W.P.No.40591/2017 M/s. Deen Perfumery Company Vs. Naeemuddin Gafar. 5/7
3. Learned counsel for the petitioner/defendant-M/s.Deen Perfumery Company has urged before the Court that since the suit for Specific Performance namely O.S.No.25246/2010 was in the final stage and arguments in the said suit are being heard, the fate of the said suit will undoubtedly affect the present ejectment suit filed by the Respondent/plaintiff - Naeemuddin Gaffar and therefore, the proceedings of the subsequently instituted suit should have been stayed in terms of Section 10 of CPC.
4. On the other hand, the learned counsel for the Respondent/plaintiff urged before the Court that two suits are of different nature and therefore, the rejection of application u/s.10 of CPC is justified.
5. Having heard the learned counsel for the parties, this Court is satisfied that Section 10 of CPC would squarely apply to the facts of the present case Date of Order: 20.08.2018 W.P.No.40591/2017 M/s. Deen Perfumery Company Vs. Naeemuddin Gafar. 6/7 since the suit property in question is undoubtedly common and the plaintiff in the previously instituted specific performance suit is the defendant and subsequently instituted ejectment suit and therefore, if the present petitioner-M/s.Deen Perfumery Company succeeds in the suit for specific performance naturally the ejectment suit filed by the Respondent/plaintiff- Naeemuddin Gafar cannot be decreed. However, if the specific performance fails, the trial of the ejectment suit can be restored on its own merits. In any case, since the ejectment suit is subsequently instituted by the Respondent/plaintiff u/s.10 of CPC, the trial of the said suit is pending in a different Court should have been stayed by the learned Trial judge awaiting the decision of the Specific Performance suit instituted in earlier point of time and which is admittedly said to be in the final stage.
Date of Order: 20.08.2018 W.P.No.40591/2017 M/s. Deen Perfumery Company Vs. Naeemuddin Gafar. 7/7
6. Therefore, the present writ petition deserves to be allowed and the same is accordingly allowed and the order dated 18.02.2017 in S.C.No.15264/2015 (M/s.Deen Perfumery Company -vs- Mr.Naeemuddin Gaffar) is set aside and the proceedings of the said suit O.S.No.25246/2010 pending on the file of the 28th Additional City Civil Court, CCH-29 shall remain stayed until the conclusion of the trial in O.S.No.25246/2010. No order as to costs.
Sd/-
JUDGE TL