@JUDGMENTTAG-ORDER
-ORDERVineet Kothari, J.@mdashThese two cross writ petitions are being disposed of by this common order. Ganga Devi W/O Ganesh Lal and other legal representatives of Ganesh Lal have filed SBCWP No.6490/2009 against Nana Lal and others being aggrieved by the impugned order dtd.25.5.2009 rejecting their application u/s 10 of the CPC by the learned Civil Judge (S.D.), Udaipur in Civil Suit No. 62/2004 Nana Lal V/s Ganesh Lal for eviction of the suit premises, one of the two shops in question.
2. The other writ petition No. 8368/2008 - Nana Lal and ors. V/s Presiding Officer of Rent Tribunal and ors. has been filed being aggrieved by the order dtd.11.7.2008 passed by the learned trial Court of Dist. Judge, Udaipur allowing the application u/s 10 C.P.C. in view of previously instituted suit No.241/1988 for specific performance by Ganesh Lal.
3. The learned counsel Mr. J.K. Bhaiya for Smt. Ganga Devi and ors. submitted that in view of previously instituted suit No.241/1988 for specific performance filed by Ganesh Lal for seeking specific performance of agreement to sell executed in his favour by the then landlord and owner of the property Budhar Mal Sindhi in the year 1985, the subsequent suit filed by the subsequent purchaser of the suit property Nana Lal, who purchased the said suit property on 15.12.1988 only, for eviction was barred by Section 10 C.P.C. and while the said subsequent suit for eviction in respect of one of the shops was stayed by the learned trial Court vide order dtd.11.7.2008, which has been challenged in the connected writ petition No.8638/2008 by Nana Lal before this Court, the learned trial Court has erred in rejecting the similar application u/s 10 C.P.C. by subsequent order dtd.25.5.2009 assailed by them in the present writ petition No.6490/2009. He submitted that conflicting decrees are likely to be passed, if the eviction suit is permitted to be pursued by the subsequent purchaser of the property, since if upon specific performance granted by Court, if the sale-deed is executed in favour of Ganesh Lal or his legal representatives Ganga Devi and others, then the subsequent sale-deed in favour of Nana Lal dtd.15.12.1988 would be hit by principles of lis pendense and since the suit property and parties are same in both the suits, Section 10 of CPC was attracted and the subsequent eviction suits deserved to be stayed and consequently, the learned trial Court has erred in rejecting the application of the present petitioners u/s 10 C.P.C. by impugned order dtd.25.5.2009. Hence the present writ petition No.6490/2009 deserves to be allowed, whereas Writ petition No.8638/2008 filed by Nana Lal deserves to be dismissed.
4. Per contra, Mr. Sunil Ranwa, for Mr. Manish Shishodia appearing for Nana Lal and ors. vehemently submitted that the nature and character of the subsequent eviction suits is apparently different and the subsequent eviction suits being filed for eviction under the Rent Control Act, whereas the previously instituted suit is filed for specific performance on the basis of alleged agreement to sell, which is an unregistered document and initally only oral agreement is said to be there in the year 1985 in favour of the petitioners Ganesh Lal, whose LRs. Ganga Devi and others are before this Court, whereas Nana Lal had a much better title over the suit property on the basis of registered sale-deed dtd.15.12.1988 for purchase of suit property including both the shops in question by registered sale-deed executed by Budhar Mal in favour of Nana Lal on 15.12.1988 and consequently, both the suits for eviction filed by title holder Nana Lal could not be stayed on the anvil of Section 10 C.P.C. as the parties were also different and character of the suit was also different. He further submitted that since specific performance is a discretinoary relief, which may or may not be granted to the LRs. of Ganesh Lal in the present case, the suit filed by registered sale-deed holder Nana Lal cannot be stayed u/s 10 C.P.C. He therefore, submitted that while the writ petition filed by Nana Lal, namely, SBCWP No.8638/2008 against the order dtd.11.7.2008 deserves to be allowed, the writ petition filed by LRs. of Ganesh Lal, namely, SBCWP No.6490/2009 deserves to be dismissed.
5. Having heard the learned counsels for the parties, this Court is of the opinion that there is considerable force in the submissions of the learned counsel for the respondents Mr. Sunil Ranwa appearing for Nana Lal and ors. and subsequent eviction suits filed for eviction for both the shops in question by registered saledeed/title holder Nana Lal cannot be stayed on the strength of Section 10 C.P.C. merely because previously instituted suit for specific performance by Ganesh Lal is pending trial. The said suit No.241/1988 for specific performance though has been pending for last 20 years or more cannot be a ground to stay the trial of eviction suit. The learned counsel for Ganga Devi and ors was not able to apprise the Court of the stage of that suit No.241/1988. The nature of two suits is definitely different and there is no scope of passing of any conflicting decrees in both the suits in question.
6. Section 10 C.P.C. is attracted only if parties and suit property is not only same, but the subsequent suit is also substantially of same nature, but in the present case, the title holder under the registered sale-deed dtd.15.12.1988 Nana Lal has definitely better and perfect title over the suit property in question in comparison with the right of legal heirs of Ganesh Lal, who claim such interest in the property in a suit for specific performance which only upon being decreed in their favour and a sale-deed being executed by the trial Court in their favour, can confer some title upon them. In the considered opinion of this Court, section 10 C.P.C. is not attracted in the present case and therefore, the learned trial Court was not justified in staying the proceedings in eviction suit vide order dtd.11.7.2008 and consequently the writ petition No. 8638/2008 Nana Lal V/s Presiding Officer and others deserves to be allowed, whereas the writ petition filed by LRs. of Ganesh Lal, namely, SBCWP No.6490/2009 deserves to be dismissed.
7. Consequently, the writ petition No.8638/2009 is allowed and the writ petition no.6490/2009 is dismissed and the impugned order dtd.25.5.2009 passed by the trial Court is upheld,whereas the impugned order dtd.11.7.2008 of the trial Court is quashed and set aside. No order as to costs.
