Dina Nath Gupta @APPELLANT@Hash Sajda Parveen

Heard Mr. Abinash Kumar, the learned counsel for the petitioner, and Mr. Partha Sarthy, the learned counsel for the respondents.

The petitioner has filed this Civil Misc. petition against the order dated 28.07.2016 passed by learned Sub Judge-IV, Danapur in Title Eviction Suit

No. 4 of 2013 by which the learned Sub Judge dismissed the petition of the petitioner for recalling the order dated 29.02.2016 passed in the same suit

by which further proceeding of Title Eviction Suit No. 4 of 2013 has been stayed till the disposal of Title Suit No. 140 of 2013.

The relevant facts can be summarized as follows:-The petitioner is the plaintiff of the eviction suit. The petitioner filed the suit for eviction of the

defendants on the ground of personal necessity and default in payment of rent. The plaintiff stated in the plaint that Mahmood fell in need of money

and he with consent of his sister, Sagra, sold the land mentioned in schedule of the plaint in favour of Radhika Devi and Kedar Nath Gupta, mother

and brother of the plaintiff, through two registered sale deeds dated 19.02.1986 and 20.02.1986. Later on partition took place and the property fell in

the share of the plaintiff. The plaintiff inducted tenant, Jamil Hasan, husband of defendant/ respondent No.1 and father of defendant/ respondent No.2

as month to month tenant at monthly rental of Rs. 100/- per month in May, 1988. Later on the defendants defaulted in payment of rent and the plaintiff

also required the suit premises for his own use and occupation and, thus, he filed the suit.

The defendants appeared and filed written statement denying the relationship of landlord and tenant. The defendants stated that they filed Title Suit

No. 140 of 2013 for declaration that the two sale deeds executed by Mahmood in favour of mother and brother of plaintiff in the year 1986 are illegal,

void ab initio and not binding on them. During the pendency of the suit, the defendants filed petition under Section 10 of the Code of Civil Procedure to

stay the further proceeding of Title Eviction Suit No. 4 of 2013. The learned Sub Judge after hearing the parties stayed the further proceeding of Title

Eviction Suit No. 4 of 2013 vide order dated 29.02.2016.

The petitioner/ plaintiff filed petition on 13.06.2016 under Section 151 of the Code of Civil Procedure for recalling the order dated 29.02.2016 on the

ground that the eviction suit cannot be stayed during the pendency of the title suit filed for declaring the two sale deeds executed by the landlord as

void and illegal as in the eviction suit the relationship of landlord and tenant is to be decided whereas in the title suit the title of the plaintiff is in

question. If the plaintiff failed to prove the relationship of landlord and tenant between the plaintiff and defendants the suit is bound to be dismissed but

the learned Sub Judge by the impugned order dismissed the petition of the petitioner/ plaintiff for recalling the order dated 29.02.2016 holding, in sum

and substance, that issues in the title suit are same and the order dated 29.02.2016 is not passed on any misrepresentation of facts. Being aggrieved by

the aforesaid order the petitioner moved this court by filing this Civil Misc. petition.

The learned counsel for the petitioner submits that there is no dispute with regard to the fact that petitioner filed Title Eviction Suit No. 4 of 2013 on

the ground of personal necessity as well as on the ground of default in payment of rent. In the eviction suit the title of the plaintiff cannot be decided.

The defendants filed Title Suit No. 140 of 2013 for declaration that the two sale deeds executed by Mahmood in favour of Radhika Devi and Kedar

Nath Gupta are void and illegal. The plaintiff claimed title over the land by virtue of the aforesaid two sale deeds. Therefore, in the title suit the issues

are quite different and the eviction suit cannot be stayed in view of provisions as contained in Section 10 of the C.P.C. The learned counsel for the

petitioner in support of his submission placed reliance on the judgement of the Supreme Court rendered in the case of Radha Devi v. Deep Narayan

Mandal & Ors reported in 2004 (1) PLJR SC 28 in which it has been held that the eviction suit is to be decided in view of the provision as contained in

Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 and in the eviction suit the landlord is required to prove contract of tenancy as also the

grounds on which eviction is sought for and in eviction suit the court is not required to go into the serious question of title. Therefore, the eviction suit is

not required to be stayed during the pendency of title suit.

On the other hand, Mr. Partha Sarty, the learned counsel for the respondents, submits that, of course, in the eviction suit the landlord/ plaintiff is

required to prove the relationship of landlord and tenant and the serious question of title cannot be decided but the defendants of the eviction suit have

also filed title suit for declaring the two sale deeds executed in favour of mother and brother of the petitioner/ plaintiff as void and illegal and,

therefore, in sum and substance, the plaintiff in the eviction suit sought eviction of the defendant without declaration of title.

On the submission of both sides, the sole question arises for consideration in this petition that whether the learned Sub Judge is legally justified in

staying the further proceeding of Title Eviction Suit No. 4 of 2013 during the pendency of Title Suit No. 140 of 2013 filed by the defendant of the

eviction suit for declaration that the two sale deeds executed in favour of plaintiff of the eviction suit are void and illegal?

In order to decide the question firstly I reproduce Section 10 of the Code of Civil Procedure which reads as follows:-

“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] having 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]â€​.

From a bare perusal of the provision as contained in Section 10 of the Code of Civil Procedure it is evident that for stay of subsequent suit the

requirement is that in subsequent suit the matter in issue is also directly and substantially in issue in previously instituted suit between the same parties.

The defendants of the eviction suit filed Title Suit No. 140 of 2013 prior to institution of the eviction suit for declaration of two sale deeds executed by

Mahmood in favour of Radhika Devi and Kedar Nath Gupta, mother and brother of the plaintiff, of the eviction suit.

In the eviction suit which was filed subsequently the issue in sum and substance is non payment of rent or default in payment of rent as also personal

necessity of the plaintiff on which the plaintiff sought eviction of the defendants from the suit premises. Of course, the plaintiff claimed title over the

suit land and induction of tenant in the suit premises at monthly rent after purchasing the suit land in the name of his mother and brother in the year

1986 but the issue in the eviction suit is relationship of landlord and tenant and the landlord is to prove the contract between the landlord and tenant

whereas in the title suit the defendants sought declaration that the two sale deeds are illegal and void ab initio. Therefore, in the title suit, in sum and

substance, the issues are not same which are in the eviction suit.

Thus, I find that the learned Sub Judge has committed jurisdictional error in rejecting the petition of the petitioner for recalling the order dated

29.02.2016 by which he stayed the further proceeding of Title Eviction Suit No. 4 of 2013 holding that, in sum and substance, the issues in both suits

are same and similar. Accordingly, the order dated 28.07.2016 and the order dated 29.02.2016 passed by learned Sub Judge-IV, Danapur in Title

Eviction Suit No. 4 of 2013 are set aside. This Civil Misc. petition is, thus, allowed.