IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF MARCH 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA W.P.NO.8660 OF 2017 (GM-CPC) BETWEEN:
T.K.Puttappa, S/o. T.P.Krishnappa, Aged about 54 years, Advocate, R/at No.4/2, 6th Cross, (Old No.21, 5th Cross) Nagappa Street, Palace Guttahalli, Bengaluru – 560 003. …Petitioner (By Sri.Varadarajan M.S., Advocate) AND:
Smt. Dhanalakshmi, W/o. Late Ramakrishnappa, Aged about 53 years, R/at. Mahadeshwara Nilaya, No.4/2 (Old No.21), Ground Floor, 6th Cross (Old 5th Cross), Nagappa Street, Palace Guttahalli, Bengaluru – 560 003. …Respondent (By Sri.Sangamesh.R.B, Advocate) This Writ Petition is filed under Article 227 of the Constitution of India praying to set aside the Order dated 20.02.2017 passed on I.A. filed by the petitioner under Section 10 read with Section 151 CPC in S.C.No.339/2014 on the file of the XXI ACMM and XXIII ASCJ, Bengaluru City (Annexure – A).
This Writ Petition coming on for Orders, this day, the Court made the following:
O R D E R The petitioner-defendant filed the present writ petition against the order dated 20.02.2017 on I.A. in S.C. No.339/2014 rejecting the application filed by the defendant under Section 10 read with Section 151 of Code of Civil Procedure.
2. The respondent-plaintiff filed S.C.No.339/2014 for eviction against the present petitioner contending that he is a tenant and has paid rent of Rs.2,900/- p.m. from 25.03.2013 till 22.07.2013 and thereafter not paid the rent. Therefore, the eviction petition came to be filed on the grounds of bonafide use, occupation and for non payment of arrears of rent.
3. The present petitioner, who is defendant before the trial Court has filed the written statement contending that he was a tenant upto 19.01.2012. Thereafter, the respondent- plaintiff executed a sale agreement in favour of the petitioner- defendant’s wife to alienate the same. Subsequently, the respondent executed another agreement in favour of the petitioner on 12.06.2013. In spite of defendant’s demand, the land lord has not executed a sale deed. Therefore, the present petitioner also filed O.S.No.8747/2013 for specific performance to enforce the agreement and the said suit is still pending. During the pendency of the said proceedings, the defendant in S.C.No.339/2014 i.e., the present petitioner filed an application under Section 10 read with Section 151 of Code of Civil Procedure to stay the proceedings in S.C.No.339/2014 till the disposal of O.S.No.8747/2013 filed for specific performance of contract contending that the parties and the suit property involved in S.C.No.339/2014 and O.S.No.8747/2013 are one and the same. The said application is resisted by the plaintiff. The trial Court considering the application and the objections, by its order 20.02.2017 rejected the application. Hence, the present writ petition is filed.
4. Sri.Varadarajan.M.S, learned counsel for the petitioner-defendant contended that the impugned order passed by the trial Court rejecting the application filed by the petitioner to stay the further proceedings in S.C.No.339/2014 is onerous. He would further contend that the trial Court by holding that the parties and the issue involved in S.C.No.339/2014 and O.S.No.8747/2013 are not one and the same, rejected the application. He would further contend that the suit was filed between the same parties with the same property but different reliefs. If any eviction is passed in S.C.No.339/2014 before the decision made in O.S.No.8747/2013, the petitioner will be put to great loss and damage. Therefore, he has sought to allow the petition.
5. Per contra, Sri.Sangamesh.R.B, learned counsel for the respondent-plaintiff sought to justify the impugned order. He would further contend that there is a dispute with regard to execution of the agreement. The suits between the parties and relief sought for are entirely different merely because the petitioner herein has filed a suit for specific performance on the alleged agreement and the same is disputed by the land lord. The application filed in S.C.No.339/2014 by the petitioner under Section 10 of Code of Civil Procedure is not maintainable and sought for dismissal of this petition.
6. Having heard the learned counsel for the parties, it is an undisputed fact that the respondent-plaintiff has filed S.C.NO.339/2014 for ejectment on the ground that the lease period has been expired and he has not paid rent. Since, the property requires for bonafide reasons and occupation, the said application was resisted and the said averments were criticized by filing objections contending that the land lord executed first agreement in favour of the present petitioner’s wife on 19.01.2012 and subsequently, on 02.12.2013, the petitioner has also filed O.S.No.8747/2013 for specific performance and same is still pending. The trial Court considering the application has recorded the finding that the issues involved in S.C.No.339/2014 and O.S.No.8747/2013 are totally different and the reliefs in both the suits are not one and the same. It is also not in dispute against two alleged agreements dated 19.01.2012 and 12.06.2013, the possession was not delivered. Therefore, the stay in further proceedings in S.C.No.339/2014 would not arise.
7. By plain reading of the provisions of Section 10 of Code of Civil Procedure would clearly indicate that 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.
8. Admittedly, though two suits filed by the land lord are entirely different and the relief sought for is also different, there is no issue involved substantially in a previously instituted suit.
9. Therefore, trial Court by the impugned order dated 20.02.2017 rejecting the application filed by the defendant under Section 10 read with Section 151 of Code of Civil Procedure, the petitioner is not entitled for any relief. Accordingly, this writ petition is dismissed.
However, it is needless to observe that if the present petitioner succeed in O.S.No.8747/2013, it is for him to get back in possession in accordance in law.
In view of dismissal of the writ petition I.A.No.1/2017 does not survive for consideration and the same is disposed of.
Sd/- JUDGE KPS