Dismissed

Sri N Sundaram v. Sri D S Srinath

Karnataka HC10 Nov 2021WP/10503/2020

Case brief

AI extract

What is this about?

Writ petition filed to challenge an order declining to stay ejectment proceedings under Section 10 of CPC. Court held that a right under agreement of sale does not merge with tenancy right, order is not legally infirm, rights can be asserted in subsequent proceedings.

What did the court decide?

Petition rejected with observation that civil court must consider merits of rival cases independently.

Sri N Sundaram Vs Sri D S Srinath — Landlord and Tenant | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER 2021

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BEFORE

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THE HON’BLE MR. JUSTICE B. M. SHYAM PRASAD

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WRIT PETITION NO. 10503/2020 (GM/CPC)

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BETWEEN :

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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.

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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.

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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)

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RAMAVILAS ROAD K R MOHALLA, MYSORE.

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... PETITIONERS

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(BY SRI. RAGHU PRASAD B S., ADVOCATE)

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AND :

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SRI D. S. SRINATH S/O D A SATHYANARAYASETTY AGED ABOUT 56 YEARS NO.304-1/2, RAMA NILAYA, VIVEKANANDA ROAD, YADAVAGIRI, MYSORE.

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SRI D A SATHYANARAYASETTY (SINCE DEAD REPRESENTED BY THE LR RESPONDENT NO.1)

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... RESPONDENTS

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(BY SRI.G. BALAKRISHNA SHASTRY., ADVOCATE FOR R1; VIDE ORDER DATED 25.08.2021 R1 IS TREATED AS LRS OF DECEASED R2)

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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

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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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.

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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

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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.

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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,

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(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.

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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

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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.

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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.

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SD/JUDGE

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Sri N Sundaram v. Sri D S Srinath

Case brief

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Sri N Sundaram v. Sri D S Srinath

Case brief

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