D.J. Moharir, J.@mdashHeard Shri Khadar for the revision applicant (Original defendant). Shri Lakhkar for the opponents Nos. 1 to 5 (Original plaintiffs).
2. Rule. Rule heard forthwith.
3. This revision application is directed against the rejection of the petitioner-defendant''s application in Regular Civil Suit No. 441 /1988 on the file of the Civil Judge, Senior Division, Nanded. The defendants prayed by the said application that the suit be stayed pending final decision of her earlier suit No. 202/1981. The said suit No. 202/1981, which had come to be decreed in favour of the petitioner Haji Begum was, however, only partly allowed on appeal to the District Court being Civil Appeal No. 236/1983 decided on 11th December, 1987. Both Haji Begum and Jani Begum filed Second Appeals in the High Court which are also pending. The chronology of the events and the course of litigation between the parties would appropriately require to be stated in some detail.
The house property, according to the plaintiffs in Regular Civil Suit No. 401/1988 who are the opponents in the present revision application belonged to their father one Mohammed Hussain s/o Mohammed Sarwar who died in the year 1985. Mohammed Hussain, as was alleged by his five sons as the plaintiffs in Civil Suit No. 401/1988 had made an oral Will accompanied by delivery of possession of almost the entire house property to them. As such, these five sons of Mohammed Hussain were the true owners, having title to the suit property. Their mother Mst. Jani Begum, as they further asserted, had no right, title and interest in this house property. However, she appeared to have let out a portion of this house property to Mst. Haji Begum. It was liable to be treated as a matter of fact, so illegal, according to the plaintiffs, since it was their father who was alone the owner of the house property and Mst. Jani Begum had no right, title to create interest, as a tenant in the said Haji Begum. These plaintiffs, therefore, alleged that the tenancy of Haji Begum being entirely illegal, they had served her with a notice in their capacity as the owners of house property - under the oral will made by Mohammed Hussain - and had called upon her to vacate and deliver possession of the portion which had been let out to her by Jani Begum. This Regular Civil Suit No. 401/88 is being contested by Haji Begum and is pending. It is in this view that Haji Begum, therefore, made the present application dated 10-8-1989 in the said Regular Civil Suit No. 401/88. This application is rather a cryptic one, wherein she, with mere formality, alleged that the provisions of section 10 of CPC were attracted in this case and that this suit was, therefore, required to be stayed pending the decision on her own Civil Suit No. 202/1981, which was pending at the level of the High Court in the form of two Second Appeals; one filed by herself and the other by Jani Begum. Haji Begum had instituted the said Civil Suit No. 202/1981 against Jani Begum, claiming specific performance of an agreement of sale of the house property in her favour. The agreement of sale was dated 14-4-1978 and therein the said Jani Begum had represented herself to be the sole and exclusive owner of the suit house property, and she agreed to sell this house property to Haji Begum for a consideration of Rs. 17,000/- part of which, Rs, 13,275/-, had also been paid by her to Jani Begum at the time of agreement of sale itself and further that she had also placed Haji Begum in possession of the entire house property. Be it noted that this agreement of sale is of the year 1978 and the suit for specific performance thereof came to be instituted by Haji Begum in the year 1981.
4. Progress of this suit Reg. Civil Suit No. 202/1981 needs to be stated. The trial Court fully decreed this claim of Haji Begum for specific performance of agreement of sale. In Civil Appeal No. 236/1983, filed by Jani Begum, and decided on 11-12-1987, the said appeal was partly allowed, in that the decree for specific performance as passed in favour of Haji Begum was quashed and only a money decree for refund of the amount of Rs. 13,275/- had come to be passed in her favour. Therefore, Haji Begum preferred a Second Appeal No. 130/1988 reasserting her claim of entitlement to specific performance of the agreement of sale whereas Jani Begum made a grievance of the money decree for refund of consideration passed against her by way of Second Appeal No. 238/1989. It is, therefore, to be appreciated and considered as to what are the four corners of the facts and circumstances which are required to be established by the present revision-applicant Haji Begum before she can contend that for and during the pendency of the two appeals, arising out of her Civil Suit No. 202/1981, the trial of the Suit No. 401/1988 instituted against her by the present revisional opponents should be and liable to be stayed.
5. As stated earlier, all that Haji Begum contends in para 3 of her application u/s 10 of CPC is that as per section 10 it would be necessary to stay the suit No. 401 /1988 till the final disposal of the Second Appeal No. 130/1988, that it was so necessary to stay the suit because the ingredients of section 10 were fulfilled in the present case. What precisely these ingredients are and how they could be contended as having been duly fulfilled, to entitle her to an order of a stay of suit No. 401/1988, has nowhere been pointed out - as actually pointed out by the learned Counsel Shri Lakhkar, appearing for the opponents in this revision application. On the other hand, if at all any reason for staying the suit u/s 10 of CPC could be said to have been provided in this application, then it is only in para 4 of this application where the revision petitioner says that "if the present suit is not stayed, then the legal complications will arise which will bring hardship to both the parties in the execution."
6. Such, with respect to the learned Counsel for the petitioner, is not and cannot be the scope of granting of stay of the suit u/s 10 of Civil Procedure Code.
7. The essentials as may be established unequivocally and as must be brought within the four corners of section 10 of CPC are that the suit, the stay of which is being sought, is a subsequently instituted suit. Admittedly, the present suit No. 401/1988 has been only considerably later instituted follows Haji Begum''s Civil Suit No. 202/1981. But with the admission of this single fact and circumstance, the requirements of section 10 of CPC are still far from fulfilled. The two suits, the earlier and the subsequently instituted one, must both be shown as involving a matter which is in issue directly and substantially in the previously as well as subsequently instituted suits. It has, therefore, to be appreciated as to whether the matter involved in the two suits and in issue can be said to be the same. The suit instituted by Haji Begum is one for specific performance of an agreement of sale which is alleged to have been executed in her favour by Mst. Jani Begum wife of Mohammed Hussain. Haji Begum and Jani Begum are, therefore, the only two parties to the Civil Suit No. 202/1981. In the present Civil Suit No. 401/1988, the parties are the five sons of Mohammed Hussain as the plaintiffs and Haji Begum as the defendant. The character of these parties present in the said suit is of the plaintiffs (and not their mother Jani Begum) being the owners of the suit house property under an oral will made in their favour by their father Mohammed Hussain in the year 1985 and Haji Begum as the defendant being only a person in illegal and unauthorised occupation of a part of the said house property - unauthorised and illegal in the sense that according to the plaintiffs in suit No. 401/1988, their mother Jani Begum had absolutely no right, title or interest to deal with the suit property at any time. She was not the owner nor the landlady and could not have therefore let out any portion of the said house property to Haji Begum while her husband Mohammed Hussain s/o Mohammed Sarwar as the true owners thereof, was still living. It, therefore, becomes more than patently clear that the characters which the parties fill in the two suits are entirely different. They cannot be said to be litigating in two suits under the same title. On the other hand, it must be noted that the characters are diametrically different and inconsistent so as to render it inconceivable that the decision in one should be responsible for determining the issues involved in the other, namely, the decision in the earlier suit and the issues involved in the subsequent suit No. 401/1988. The requirement that the parties, should be ones who are litigating under the same title is, therefore, not fulfilled to attract section 10 of Civil Procedure Code. And as is to be appreciated the two plaints are founded are on totally different and independent cause of action. Regular Civil Suit No. 202/1981 is founded on agreement of sale of 1978 and the right to enforce it as the cause of action. Whereas, the Regular Civil Suit No. 401 /1988 is founded on the right to possess the suit house property by virtue of the oral Will of 1985, made by Mohammed Hussain pleaded by the plaintiffs as the source of their title.
8. Learned Counsel Shri Khadar appearing for the present revision applicant, has however contended that there is one more aspect of the matter which must, if it does not compel, entail a stay of the present suit No. 401/1988 of the plaintiffs. The reason which he provides is this : against the decision in Civil Appeal No. 236/1983, arising out of the Civil Suit No. 202/1981, which had been filed by Haji Begum, two Second Appeals came to be preferred; one by Haji Begum, against Jani Begum and the other by Jani Begum against Haji Begum. Haji Begum claimed entitlement to the specific performance of the agreement of sale and Jani Begum endeavoring to establish the want of any liability on her part to be subjected even to make a refund of the amount of Rs. 13,275/-which had allegedly come to be paid to her under the agreement of sale in the year 1978. Learned Counsel Shri Khadar points out that Jani Begum, as party to both the appeals, had since come to pass away and, therefore, the present plaintiffs in the Civil Suit No. Reg. Civil Suit 401/1988 had come to be impleaded as parties to both the Second Appeals, they being the legal representatives of the said deceased Jani Begum. That circumstance does not, in my opinion improve the situation for the present revisional applicant. For, in the Civil Suit No. 401/1988, which they have instituted they would still continue to claim, as owners under the Will made in their favour by their deceased father Mohammed Hussain s/o Mohammed Sarwar whereas the representation which they would have to make in Civil Suit No. 202/1981 would be of the right, title and interest alleged to be possessed by Jani Begum in the suit property as herself the owner thereof. It is in the capacity of Jani Begum as the owner of the suit house property that they would have to continue to represent her interest. The interest, as they now claim by their Civil Suit No. 401 /1988, runs entirely counter to the position that Jani Begum was the owner of the suit house property entitled to possess and own the same and also entitled to dispose of the same in favour of Haji Begum. It is, therefore, that I have observed that it will be a case of two diametrically opposite roles which the five sons of Mohammed Hussain would be called upon to play in the two distinctly different litigations that are pending. That as the assessment of the entire set of facts and circumstances as they presently obtain, must be found to be at the bottom of why the present application u/s 10 has been kept only vaguely worded without specifying how the requirement thereof, for the purpose of an order for stay of the said suit, can then be said to have been fulfilled. In my opinion, the learned Judge of the trial Court was right and in no way in error in declining to stay the proceedings in the said civil suit No, 401/1988. The revision application has, therefore, to be found as being one without indeed any merit. It is accordingly dismissed. There shall, however, be no order as to costs. The ad interim stay granted shall stand vacated. Rule discharged.
