Rameshwar Rao @ Chandu Gaykwad vs Sharad Chouhan
2023 Latest Caselaw 4228 MP

                              1               M.P. No.1487/2021


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 17th OF MARCH, 2023
              MISC. PETITION No. 1487 of 2021
BETWEEN:-

1.   RAMESHWAR       RAO      @      CHANDU
     GAYKWAD S/O LATE BAMAN RAO, AGED
     ABOUT 68 YEARS, R/O F-25, SAINIK
     SOCIETY, SHAKTI NAGAR, JABALPUR,
     M.P./R/O HOUSE NO 1329, 1330, NARMADA
     ROAD, PANDIT BANARSI DAS BHANOT
     WARD       GORAKHPUR,         JABALPUR
     (MADHYA PRADESH)



2.   SMT. MALA BODARE W/O SHRI SURESH
     BODARE, D/O LATE BAMAN RAO, AGED
     ABOUT YEARS, R/O F-25, SAINIK SOCIETY
     SHAKTI NAGAR, JABALPUR (MADHYA
     PRADESH)



3.   SMT. ALKA GAYKWAD W/O LATE SHRI
     MUKESH GAYKWAD, AGED ABOUT
     YEARS, R/O F-25, SAINIK SOCIETY,
     SHAKTI NAGAR, JABALPUR, M.P./R/O
     HOUSE NO. 1329, 1330, NARMADA ROAD,
     PANDIT BANARSI DAS BHANOT WARD,
     JABALPUR (MADHYA PRADESH)


                                              .....PETITIONERS
(BY SHRI ANSHUMAN SINGH- ADVOCATE)

AND

1.   SHARAD CHOUHAN, S/O LATE V.S.
     CHAUHAN, AGED ABOUT 56 YEARS, R/O
     HOSUE NO. 1454/7, NARMADA ROAD,
     JABALPUR (MADHYA PRADESH)
                                   2                    M.P. No.1487/2021



2.   SHASHIKANT AGRAWAL, S/O LATE SHRI
     D.P AGRAWAL, AGED ABOUT 60 YEARS,
     R/O HOUSE NO. 3080-B, ADITYA COLONY,
     NARMADA ROAD, JABALPUR (MADHYA
     PRADESH)



3.   SUNIL KUMAR NAMDEV S/O SHRI R.R.
     NAMDEV, AGED ABOUT 56 YEARS, R/O
     HOUSE NO. 52, NATIONAL COLONY,
     RAMPUR,    JABALPUR     (MADHYA
     PRADESH)


                                                      .....RESPONDENTS
(NONE )
      This petition coming on for admission this day, the court passed the

following:

                                   ORDER

This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 13.01.2021 passed by 25th Additional District Judge, Jabalpur in RCSA No.905/2019 by which the application filed by the petitioners under Section 10 of C.P.C. has been rejected.

2. It is submitted by the counsel for the petitioners that the respondents have filed a suit for specific performance of contract on the basis of agreements dated 11.10.2011 and 08.01.2014 executed between the parties with a stipulation that the agreements would be acted upon after the case which is pending in the Court is decided. It is further submitted by the counsel for the petitioners that First Appeal No. 652/2007 is pending in which the petitioners are the appellants who had lost their case instituted by Nalin Kumar Gaikwar through his legal

representatives Smt. Premlata Gaikwar, Uttam Gaikwar and Kapil Gaikwar. In the said suit a decree was passed on 30.04.2007 to the effect that the plaintiffs in Civil Suit No.34-A/2004 have one half share in the land in dispute and the petitioners shall not create any obstruction in the possession and ownership of the plaintiffs in the said suit and mutation of the names of Shri Balwant Rao in the Municipal record is null and void. It is not in dispute that plaintiffs in Civil Suit No. 34-A/2004 represent the branch of Shankar Rao Gaikwar whereas the petitioners represented the branch of Martand Rao Gaikwar.

3. It is submitted that Rs.20,00,000/- were received on the date of execution of agreement and subsequently on different dates certain amounts were received and till, Rs.71,80,000/- have already been received by the petitioners. It is submitted that in original agreement dated 11.10.2011 there was reference of the pending suit and later on, a supplementary agreement was executed on 08.01.2014, in which it was mentioned that the petitioners shall execute the sale deed after the case which is pending in the Court is finally decided. It is submitted that since the respondents have filed a suit for specific performance of contract whereas both the agreements i.e. agreement dated 08.01.2014, and original agreement to sale dated 11.10.2011 were contingent contract, therefore, the respondent filed an application under Section 10 of C.P.C. for stay of further proceedings in the civil suit till the final disposal of the First Appeal No.652/2007. However, by the impugned order the trial Court has rejected the application.

4. It is submitted that since the agreement cannot be enforced till the final disposal of the first appeal, therefore, the suit for specific performance of contract filed by the respondents is premature and the

execution of the agreement would be depended upon the final outcome of F.A. No. 652/2007. Therefore, the trial Court erred in law in not staying the further proceedings.

5. Heard learned counsel for the petitioners.

6. Section 10 of C.P.C. reads as under:-

"10. 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] have 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]."

7. From the plain reading of this section it is clear that in order to invite the rigours of Section 10 of C.P.C., the defendants must prove that the matter in issue is also directly and substantially in issue in a previously instituted suit and between the same parties.

8. Admittedly, the First Appeal No. 652/2007 is not between the petitioners and the respondents. The respondents are agitating against petitioners, therefore, it can be held that they are claiming their rights through the petitioners. First Appeal No. 652/2007 relates to the title of the petitioners. It is true that the agreements dated 08.01.2014 and dated 11.10.2011 are contingent contracts but the issue involved in the present case is not directly or substantially in issue in a previously instituted suit which is subject matter of First Appeal No. 652/2007. The petitioners

have admittedly received a substantial amount of Rs.71,80,000/- as mentioned in paragraph 4 of the plaint.

9. Whether the petitioners are the owner of the entire land, which is subject matter of the suit or not can have an impact on the final disposal of the suit. But, one thing is clear that the petitioners were aware of the fact that the legal representatives of Shankar Rao have already been held to be the owner of 1/2 portion of the land and the petitioners have preferred First Appeal No. 652/2007. In spite of that they entered into an agreement on 11.10.2011 and have already received a substantial amount of Rs.71,80,000/-. Since, the matter in issue is not directly or substantially in issue in a previously instituted suit from which First Appeal No. 652/2007 has arisen coupled with the fact that the petitioners have already received substantial amount of Rs.71,80,000/-, therefore, it would not be proper to stay the suit in hand till the final disposal of First Appeal No. 652/2007 which is pending before this Court.

10. Furthermore, there is nothing on record that the petitioners have ever made any attempt for early disposal of First Appeal No. 652/2007. The petitioners cannot be permitted to enjoy the substantial amount paid by the respondents on the pretext that the title of the petitioners is under cloud and First Appeal No. 652/2007 is pending. Specifically when the agreement to sale was executed on 11.10.2011 i.e. during the pendency of First Appeal No. 652/2007.

11. There is another aspect of the matter. The petitioners are atleast title holder of half of the subject matter, therefore, it cannot be said that the entire agreement to sell cannot be enforced.

12. Furthermore, in the light of the judgments passed by Supreme Court in the case of Ramesh Chandra Sankla and Others Vs. Vikram Cement and Others, reported in (2008) 14 SCC 58 and Shangrila Food Products Ltd. and Another Vs. Life Insurance Corporation of India and Another, reported in (1996) 5 SCC 54, this Court has jurisdiction to balance equities and pass orders to meet the ends of justice. The respondents have also made an alternative relief for refund of amount already paid by them. Thus, the question of refund of amount with interest is also subject matter of suit. Therefore, in order to balance the equities, where the petitioners are not only enjoying the property but are also enjoying a handsome amount of Rs.71,80,000/-, therefore, this Court was intending to direct the petitioners to pay interest, but one thing is clear that agreements were entered into by the parties with clear knowledge that half of the subject matter of the suit is disputed.

13. Therefore, no equitable order is being passed in exercise of power under Order 227 of the Constitution of India. After the First Appeal No.652/2007 is decided, then outcome of the same shall have impact on final outcome of the suit in hand, but still there is no hitch with regard to half of the suit property. Thus this Court is of the view that no jurisdictional error was committed by the Trial Court by dismissing the application under Section 10 of C.P.C.

14. The petition fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE ashish

ASHISH KUMAR LILHARE 2023.03.21 19:01:52 +05'30'