Karnataka High Court
Sri N Sundaram vs Sri D S Srinath on 10 November, 2021
Bench: B.M.Shyam Prasad
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE B. M. SHYAM PRASAD
WRIT PETITION NO. 10503/2020 (GM/CPC)
BETWEEN :
1. SRI N. SUNDARAM
AGED ABOUT 78 YEARS,
SENDHIL FARM
BHOGADI MAIN ROAD
MYSORE,
AND ALSO TENANT IN SHOP
PREMISES BEARING D NO.155/A (K-43)
RAMAVILAS ROAD
K. R. MOHALLA, MYSORE.
2. SRI SENDHIL VELA
S/O N. SUNDARAM
AGED ABOUT 47 YEARS,
SENDHIL FARM
BHOGADI MAIN ROAD
MYSORE
BEARING D NO.155/A (K-43)
RAMAVILAS ROAD
K R MOHALLA, MYSORE.
3. SRI K. S. KUMAR
S/O N SUNDARAM
AGED ABOUT 44 YEARS,
SENDHIL FARM
BHOGADI MAIN ROAD
MYSORE,
AND ALSO TENANT IN SHOP
PREMISES BEARING D NO.155/A (K-43)
2
RAMAVILAS ROAD
K R MOHALLA, MYSORE.
... PETITIONERS
(BY SRI. RAGHU PRASAD B S., ADVOCATE)
AND :
1. SRI D. S. SRINATH
S/O D A SATHYANARAYASETTY
AGED ABOUT 56 YEARS
NO.304-1/2, RAMA NILAYA,
VIVEKANANDA ROAD,
YADAVAGIRI, MYSORE.
2. SRI D A SATHYANARAYASETTY
(SINCE DEAD REPRESENTED BY THE
LR RESPONDENT NO.1)
... RESPONDENTS
(BY SRI.G. BALAKRISHNA SHASTRY., ADVOCATE FOR R1;
VIDE ORDER DATED 25.08.2021 R1 IS TREATED AS
LRS OF DECEASED R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ANNEXURE-H ORDER DATED 13.2.2020 THE
IA NO.III BY THE IV ADDITIONAL I CIVIL JUDGE AND
JUDICIAL MAGISTRATE MYSORE IN O.S.NO.1130/2013
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE
COURT MADE THE FOLLOWING:
3
ORDER
The petitioners, who are the defendants in
O.S.No.1130/2013 on the file of the IV Additional I Civil
Judge and JMFC, Mysuru (for short 'the civil Court'),
have impugned the civil Court's order dated 13.2.2020.
The civil Court by this order has rejected the petitioners'
application under Section 10 of the CPC refusing to stay
further proceedings.
2. The respondents, who have acquired title to
the subject property under a registered sale deed
executed by the undisputed original owner, Sri
M.R.Sundararajan, have commenced the present suit
for ejectment against the petitioners asserting that the
petitioners are tenants in possession of the subject
property. The petitioners' case is that Smt. Maruthalal,
under whom they claim right to purchase the subject
property, has entered into an agreement with the
original owner, Sri M.R.Sundararajn; Smt. Maruthalal
has filed the suit for specific performance in
O.S.No.92/2004. This suit is dismissed by judgment
dated 6.4.2013, and though the first appeal is also
dismissed by the first appellate Court, the second
appeal is pending before this court in RSA
No.733/2015. Until the said appeal is disposed of by
this Court, the respondents' suit for ejectment must be
stayed. This Court has granted the interim order
permitting trial to go on but staying the decree. It is
submitted that the trial is proceeded with and the
matter is presently listed for final arguments.
3. The civil Court has rejected the petitioners'
application holding that a tenant, merely because has
filed the suit for specific performance, cannot resort to
Section 53A of the Transfer of Property Act,1882 and
stall the proceedings for ejectment. The civil Court has
relied upon the decision of the Hon'ble Supreme Court
in Aspi Jal & Anr. v. Khushroo Rustom. Dadyburjor,
(2013)4 SCC 333 to conclude that the purpose of
Section 10 of CPC is to pin down a plaintiff to one
litigation and to avoid multiplicity of proceedings and
contradictory verdicts. Though not said in so many
words, the civil Court's reasons, as could be discerned
by the impugned order, is to make out a distinction
between the issues in a suit for specific performance
and in a suit for ejectment and reject the application.
4. It cannot be disputed that there must be
similarity in the Issues involved in the prior suit and the
subsequent suit for invoking the jurisdiction under
section 10 of CPC to stay the latter suit to give effect to
the Legislature's intendment to pin down parties to one
proceeding and to avoid contradictory verdict. A right
under the agreement of sale does not constitute an
interest in immovable property [it is only a right to
purchase]. A tenant's right to continue in possession
cannot merge with the higher interest in the property
based on an agreement of sale. The petitioners, if they
succeed in their appeal before this Court, must work
out their remedies accordingly, but that cannot be a
reason for staying the suit for ejectment. Therefore, the
impugned order does not suffer from any legal infirmity.
For the foregoing, the petition stands rejected but
with the observation that the civil Court shall consider
the merits of the rival cases independent of any
observation either in the impugned order or in the
course of this order.
SD/-
JUDGE
nv
