Madhya Pradesh High Court
Fajal Ahmed vs Syed Sultan Ahmed on 20 March, 2018
1 M.P. No. 698/2017
HIGH COURT OF MADHYA PRADESH : JABALPUR
SINGLE BENCH : JUSTICE MS.VANDANA KASREKAR
MISCELLANEOUS PETITION NO. 698/2017
Fajal Ahmed
Vs.
Syed Sultan Ahmed
Shri Ankit Saxena, learned counsel for the petitioner.
Shri Sameer Seth, learned counsel for the respondent.
ORDER
(20.03.2018) The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the orders dated 05.10.2017 as well as dated 13.09.2017 passed by the trial Court.
2. At the time of the argument, learned counsel for the petitioner submits that he does not want to press this petition so far as, the order dated 05.10.2017 is concerned.
3. Accordingly, the petition is dismissed as 2 M.P. No. 698/2017 withdrawn in respect of order dated 05.10.2017.
4. The petitioner has filed the present petition, under Article 227 of the Constitution of India, challenging the order dated 13.09.2017 passed by 12 th Civil Judge Class-II, Bhopal in RCS No. 488-A/2016 by which the trial Court has dismissed the application preferred by the petitioner under Section 10 of the C.P.C.
5. The petitioner/defendant has filed a suit for specific performance of contract which was registered as RCS No. 462-A/2016. Thereafter, the respondent/plaintiff has also filed a civil suit for eviction which was registered as RCS No. 488-A/2016. On receiving the notice, the petitioner has filed an application under Section 10 of the C.P.C. whereby he has raised a specific ground for stay of the suit on account of pendency of previous suit between the parties which was registered as RCS No. 462-A/2016. The learned trial Court vide order dated 13.09.2017 has rejected the application submitted by the petitioner on the ground that the identity of the subject matter and controversy in two suits were not directly and substantially in issue. Being aggrieved 3 M.P. No. 698/2017 by that order, the petitioner has filed the present petition.
6. Learned counsel appearing on behalf of the petitioner argues that the order impugned is illegal and arbitrary. He submits that in respect of the property bearing Flat No. G-3/1, Kahkasa Complex, BDA Colony, Kohefiza, Bhopal, agreement was executed on 17.12.2005 and for which between the same party a suit for specific performance is pending and, therefore, Section 10 of the C.P.C. is applicable in the present facts and circumstances of the case. He further submits that the trial Court has exceeded its jurisdiction in deciding and giving observations regarding the non registration of the agreement in its impugned order, as the same cannot be taken into consideration at this stage. He further relied on the judgement passed by this Court in the case of Smt. Sarita Rathore Vs. Smt. Jaya Kunwar passed in W.P. No. 6444/2015 decided on 12.08.2016 as well as the judgement passed by the Apex Court in the case of Joseph Kantharaj and Another Vs. Attharunnisa Begum S., 2010 (2) SCC 619.
7. On the other hand, learned counsel for the 4 M.P. No. 698/2017 respondent supports the order passed by the trial Court. He submits that the trial Court has not committed any error in passing the impugned order. He further submits that there is no substantial identity of the subject matter directly and substantially in issue in the eviction suit is not the same in the suit for specific performance of contract. He further submits that after considering all the facts, the trial Court has rightly rejected the application preferred by the petitioner. He further relied on the judgement passed by this Court in the case of Trivedi Devi Vs. Vijay Mohan, 1976 MPLJ
163.
8. Heard learned counsel for the parties and perused the record as well as the order passed by the trial Court. In the present case, the petitioner has field a civil suit for specific performance of contract which was registered as RCS No. 462-A/2016. Thereafter, the respondent/plaintiff has also filed a suit for eviction which was registered as RCS No. 488-A/2016. After receiving the summons of the said suit, the petitioner has filed an application under Section 10 of the C.P.C. for stay of the subsequent suit, however, the 5 M.P. No. 698/2017 trial Court has rejected the said application on the ground that identity of the suit property is different as well as the agreement in question is not a registered document, therefore, the said agreement will not terminate the landlord tenant relationship.
9. The Apex Court in the case of Joseph Kantharaj (supra) in para 9 and 10 have held as under:-
"9. There can be no dispute about the general proposition laid down by the High Court in Haji Iqbal Shariff. But the High Court ignored the fact that though the first appellant had admitted that he was earlier the tenant under the previous owner, he had also specifically pleaded that the previous owner had executed an agreement of sale and permitted him to continue in possession in part-performance of the said agreement of sale and that therefore he ceased to be a tenant from the date of agreement, namely 11.6.1997, that the relationship of landlord and tenant between him and the previous owner had come to an 6 M.P. No. 698/2017 end, and that as on the date of sale by Anthony Swamy in favour of the respondent, he was in possession in part- performance of the agreement of sale and not as a tenant. In fact the first appellant also filed a suit for specific performance in the year 1999 which is pending. If there was an agreement of sale dated 11.6.1997 and delivery of possession in part- performance, as alleged by the first appellant, then he did not become a tenant under the respondent and the decision in Haji Iqbal Shariff relied on by the High Court would be inapplicable.
10. We may however clarify that a mere assertion by a tenant that he is in possession in part-
performance of an agreement of sale, or the mere filing of a suit for a specific performance, by itself will not lead to deferment of the eviction proceedings under Section 43 of the new Act. But where the respondent in an eviction proceeding under the Rent 7 M.P. No. 698/2017 Act denies the relationship of landlord and tenant contending that he is not in possession as a tenant and produces and relies upon an agreement of sale in his favour which confirms delivery of possession in past-performance, and a specific performance suit is pending and there is no lease deed, or payment of rent from the date of such agreement of sale, or no acknowledgment of attornment of tenancy, Section 43 of the new Act may apply. But a word of caution.
Courts dealing with summary proceedings against tenants under the Rent Acts for eviction, should be wary of defendants coming forward with defences of agreement of sale, lest that becomes a stock defence in such petitions. Unless the court is satisfied prima facie that the agreement is genuine and defence is bona fide, it should not defer the proceedings for eviction under the Rent Acts."
As per this judgment if the suit for specific performance is pending, then the suit proceedings of eviction 8 M.P. No. 698/2017 suit be stayed unless prima facie it is found that an agreement of sale is a genuine document and confirms delivery of possession.
10. Similar view has been taken by this Court in the case of Smt. Sarita Rathore (supra). In the present case also, the defendant has entered into an agreement for sale and sale consideration of Rs. 2,60,000/- has been paid to the plaintiff and remaining amount was to be paid at the time of execution of the sale deed. However, when the sale deed was not executed, therefore, the suit has been filed by the petitioner for specific performance of contract. Thus, the fate of the subsequent eviction suit is depended on the fate of suit for specific performance. If defendant succeed in his suit and decree is executed he would become the owner of the suit property. In such event, defendant would not be entitled to get decree in his suit for eviction. Therefore, in light of the aforesaid, the subsequent suit is liable to be stayed. It is further to be noted that as per Section 10 of the C.P.C. the subject matter of both the suits are not required to be identical, however, even if the cause of action in the 9 M.P. No. 698/2017 subsequent suit is substantially similar, then the subsequent suit is required to be stayed.
11. In view of the aforesaid, this miscellaneous petition is allowed. The impugned order dated 13.09.2017 passed by the trial Court is set aside and the application filed by the petitioner under Section 10 of the C.P.C. for staying of trial in RCS No. 488-A/2016 pending before the 12 th Civil Judge Class-II, Bhopal shall remain stayed.
(Ms.Vandana Kasrekar) Judge ashish Digitally signed by ASHISH KUMAR LILHARE Date: 2018.03.20 05:07:24 -07'00'