Anil Jain vs Gopal Sanghi

The present petition under Article 227 of the Constitution of India has been preferred by the petitioner being crestfallen by the order dated 08/05/2017

(Annexure P-1) passed by the trial Court whereby application preferred by the petitioner under Section 10 CPC has been turned down.

Precisely stated facts of the case for adjudication are that respondents filed a suit for eviction and recovery of arrears of rent regarding suit shop. It

was alleged that vide registered sale deed dated 18/04/2013 from Rajendra Agrawal (previous owner of the suit shop), the suit shop was purchased

and since the petitioner has not paid rent due from the date 01/04/2013 to him, therefore, the suit has been filed.

Petitioner-defendant contested the suit by filing written statement and it was submitted that Chandan Lal (father of petitioner-defendant) was the

tenant in the suit shop of the Chironji Lal, thereafter, Rajendra Agrawal received the suit shop as a gift, allegedly given by the Chironji Lal and thus

became the owner of the said shop. Thereafter, Rajendra Agrawal agreed to sale the suit shop to the petitioner/ defendant for the consideration of

Rs.25,00,000/- and executed a registered agreement to sale on dated 04/01/2012 in favour of the petitioner and received Rs.2,00,000/- through cheque

towards part payment of sale price. It was agreed by him that after agreement, he would not be entitled to receive the rent and he has given up the

right to receive the rent in favour of the petitioner.

Since the sale deed was not executed therefore, the effect was that the tenancy came to an end and there was no relationship of landlord and tenant

existed with Rajendra Agrawal.

Since Rajendra Agrawal earlier filed a suit for eviction against the petitioner before the trial Court therefore, in pursuance to said agreement, an

application for withdrawal of the suit was filed and the suit was withdrawn. Later on, petitioner came to know that Rajendra Agrawal has sold the

property to Gopal Sanghi (present respondent) on 10/04/2013 through registered sale deed and therefore, in the month of September, 2015, suit for

eviction was filed by Gopal Sanghi against the present petitioner. Meanwhile, it appears that Rajendra Agrawal did not honour the terms and

conditions of the sale agreement earlier executed between the petitioner and him therefore, petitioner preferred a suit for specific performance of the

contract against Rajendra Agrawal as well as Gopal Sanghi in the month of September, 2013. Now through the application preferred under Section

10 CPC, petitioner wanted the instant suit of eviction be stayed so that suit for specific performance of contract filed by the petitioner-defendant may

reach to the conclusion. The trial Court rejected the said application under Section 10 CPC therefore, petitioner is before this Court.

Learned Senior Advocate for the petitioner with vehemence argued that the trial Court erred in passing the impugned order because the petitioner has

filed the suit prior in time against the defendant including the present plaintiff-Gopal Sanghi for specific performance of the contract. Purpose,

subject matter and issues in both the suits are materially and substantially the same, therefore, later suit (suit for eviction) be stayed. He relied

upon the judgment of the Hon'ble Apex Court in the case of Joseph Kantharaj and Another Vs. Attharunnisa Begum S., (2010) 2 SCC 619 and the

judgment of the Coordinate Bench of this Court in the case of Sarita Rathore Vs. Jaya Kunwar, 2017 (3) MPLJ 223 and seeks parity.

Learned counsel for the respondent opposed the prayer made by the petitioner on the ground that in the present case, parties are different. Earlier

suit has been filed for specific performance of the contract and for cancellation of the sale deed. Effectively, the suit is against Rajendra Agrawal

whereas in the present suit, respondents after becoming the owner of the suit property, has filed the suit for eviction therefore, parties to the lis are

different.Â

Similarly, issues between two litigations are also different. Respondent-plaintiff cannot wait till posterity.

Similarly, in the present case in the written statement, petitioner-defendant denied that he is tenant of the present respondent-plaintiff-landlord

therefore, he cannot blow hot and cold in the same breath. He seeks dismissal of the petition.

Heard the learned counsel for the parties and perused the record.

From perusal of the order under challenge, it appears that the trial Court considered the factual aspect that the parties to the litigation are not the same

as well as the subject matter of the controversy and rightly so, because the suit earlier filed by the petitioner-defendant for relief of specific

performance of contract, permanent injunction and for setting aside of the sale deed dated 18/04/2013 and said reliefs cannot operate as res judicata in

respect of the suit filed by the respondent for eviction against the petitioner. The instant suit is filed by the person, who claims to be the owner and

landlord of the suit property on the basis of sale deed executed in his favour. Interestingly, in the written statement, petitioner denied the

landlordtenant relationship therefore, facts are not admitted in respect of the submissions, which are being canvassed by the petitioner here.Â

Therefore, on this basis, both the suits can run separately. The judgment of the Hon'ble Apex Court in the case of Joseph Kantharaj (supra) was

relied upon by the petitioner butthe fact situation and legal position is bit different in the present case. Here, the agreement to sale on which

petitioner relied, itself contemplates the factum of possession at the time of execution of sale deed and since the sale deed was not executed therefore,

possession apparently never handed over to the petitioner. Here, the owner of the suit property is different and he cannot be denied the access to

legal remedies available to the owner/ landlord for eviction of his tenant. If this suit is stayed and if ultimately petitioner looses in civil suit, then he

may raise this argument during pendency of the first appeal also by taking the stand of continuation of suit in appeal, therefore, purchaser of the suit

shop cannot be denied the legal remedies till eternity.Â

Similarly, the facts of the case of Sarita Rathore (supra) are also different and move in different factual realm. Here in the present case, this Court

does not record its satisfaction prima facie that the agreement is genuine and defines petitioner's bonafide as mandated by the Hon'ble Apex Court in

the case of Joseph Kantharaj (supra) therefore, no case for interference is made out under Article 226 of the Constitution of India.Â

At this juncture, learned counsel for the petitioner prays for consolidation of both the suits but the same appears to be a distant possibility because the

suit for specific performance of contract at the instance of petitioner has been preferred before the VI Additional District-Judge whereas the suit for

eviction has been filed before I Civil Judge, Class-II, therefore, the remedy of appeal, otherwise available to the respondent would go if the

consolidation is being made. However, the trial Court is directed to conduct the trial proceedings as expeditiously as possible and try to conclude

both the civil suits pending before I Civil Judge Class-II, Gwalior as well as VI Additional District Judge, Gwalior respectively within one year from

the date of receipt of certified copy of this order.

Parties to the lis are directed to cooperate in the trial proceedings and would not seek any undue adjournments and if any undue adjournments are

being taken by them then both the trial Courts shall take stern measures against the erring party.

Resultantly, petition sans merits and same is hereby dismissed.Â