IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.47532/2014 (GM-CPC) BETWEEN:
VASANTH MADHAVA S/O K.NARASIMHACHAR AGED ABOUT 76 YEARS SINCE DEAD BY HIS LRs
(BY SRI M.S.VARADARAJAN, ADVOCATE) AND:
E.SESHADRI S/O LATE KUTTI DORAI AGED ABOUT 70 YEARS R/AT NO.351, 36TH CROSS VII MAIN, V BLOCK JAYANAGAR, BANGALORE – 560 041 …RESPONDENT (BY SRI PREM KUMAR FOR SRI C.VINAY SWAMY FOR M/S.SWAMY & SWAMY, ADVOCATES) - - -
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 11.09.2014 (ANNEXURE-A) PASSED BY THE COURT OF THE XXV ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU ON IA NO.3 IN O.S.NO.25917/2012 ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri M.S.Varadarajan, learned Counsel for the petitioners. None appeared for the respondent.
2. In this petition under Articles 226 & 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 11.09.2014 passed by the Trial Court, by which application preferred by the deceased petitioner-Vasanth Madhava under Section 10 of the Code of Civil Procedure, 1908 has been rejected.
3. Facts giving rise to filing of the writ petition briefly stated are that the deceased petitioner has filed a suit on 14.02.2000 namely, OS.No.1083/2000 seeking relief of specific performance of the sale agreement dated 29.12.1989. In the aforesaid civil suit, the respondent has filed the written statement in which he has admitted the agreement. However, it was averred that the sale agreement was not intended to be acted upon. Thereafter on 21.04.2012, the respondent has filed OS.No.25917/2012 seeking the relief of vacant possession of the suit schedule property and for mesne profit. The deceased petitioner filed the written statement on 01.08.2013. Thereafter, the deceased petitioner filed an application on 05.08.2014 under Section 10 read with Section 151 of CPC for staying further proceedings in OS.No.25917/2012. The respondent has filed an objection to the same. The trial Court by its order dated 11.09.2014 has rejected the application filed by the deceased petitioner.
4. Since the impugned order dated 11.09.2014 is in vernacular language, a query was put to learned Counsel for the petitioners as to on what ground the aforesaid interlocutory application filed by the deceased petitioner was rejected. Thereupon the learned Counsel for the petitioners, after reading the order passed by the trial Court before this Court, submitted that the application preferred by the deceased petitioner under Section 10 of CPC has been rejected on the ground that if the suit filed for specific performance of the contract is decreed, he can get the sale deed executed and can get possession of the suit property. It is further submitted that the trial Court has held that the suit for possession filed by the respondent has nowhere affected the specific performance of the contract.
5. At this stage, one Sri Prem Kumar has entered appearance on behalf of the respondent and prays for an adjournment on the ground that the arguing Counsel Sri C.Vinay Swamy is not available. When the learned Counsel for the respondent was asked to argue the matter, he submitted that he has no instructions to argue. Later on, he fairly submitted that he has not filed vakalat on behalf of the respondent. Therefore, he has no authority to represent the respondent. This writ petition is pending before this Court since 2014. An interim order is operating against the respondent. Therefore, I decline to adjourn this case at the request of an Advocate, who otherwise has no authority to represent the respondent as he has not filed any vakalat on behalf of the respondent.
6. I have considered the submission made by the learned counsel for the petitioners and have perused the record.
7. Admittedly, the deceased petitioner has filed a suit for specific performance of the contract in respect of the same property for which the respondent has filed the suit seeking the relief of possession. In case the suit filed by the respondent is decreed, relief claimed by the deceased petitioner in the suit for specific performance of the contract as well as the possession would become infructuous. Therefore, this Court by its order dated 18.09.2015 had stayed further proceedings till the next date of hearing. This order of stay is operating till today. In the aforesaid fact situation of the case, in order to avoid possibility of conflicting judgment, it is necessary to transfer the proceeding in OS.No.25917/2012 to the Court where the civil suit namely, OS.No.1083/2014 is pending. However, the aforesaid aspect of the matter has not been appreciated by the trial Court. The impugned order dated 11.09.2014 is hereby quashed and set aside. The proceeding in the suit namely, OS.No.25917/2012 is transferred to the Court where OS.No.1083/2000 is pending. Both the civil suits shall be tried separately by the trial Court and the trial Court shall decide the same expeditiously. Accordingly, the writ petition is disposed of.
Sd/- JUDGE LB