Calcutta High Court: In an application under Article 227 of the Constitution of India, filed by the petitioner (defendant 2) challenging an order dated 16-08-2023, passed by the Civil Judge, Alipore, in a suit for eviction, a single-judge bench comprising of Hiranmay Bhattacharyya,* J., held that that the eviction suit cannot be stayed on the ground of the pendency of the declaratory suit since the scope of inquiry in the two suits is different.
In the instant matter, a suit for eviction was filed by the opposite party against the father of the parties and the petitioner, claiming the right to evict and recover possession of the property. Before the suit for eviction, the father of the parties had filed a suit seeking a declaration of his one-half share in the property and a mandatory injunction against the opposite party and his wife.
The petitioner argued that the suit for eviction should be stayed until the previously instituted suit (for declaration and injunction) is disposed of. It was also contended that the petitioner had adopted the written statement filed by his late father, and the finding by the trial court that the petitioner had not filed any written statement was erroneous.
On the other hand, the opposite party contended that the issues in both suits were not the same, and common questions of law and fact were not involved. It was further contended that the trial court after reviewing the materials on record, had rejected the application for stay, and this Court should not interfere with that decision under Article 227 of the Constitution of India.
The Court determined that the previously instituted suit was a declaratory suit seeking a declaration of one-half share in the suit property, whereas the subsequent suit was a suit for eviction upon the revocation of a license. It was opined that the scope of inquiry in the two suits are different, and the registered deed of conveyance, which the opposite party relied on for claiming title to the property, was not under challenge.
The Court concluded that the matters in issue in the subsequent suit were not directly and substantially in issue in the previously instituted suit, therefore, the decision in the declaratory suit would not necessarily non-suit the plaintiff in the eviction suit.
The Court held that the eviction suit should not be stayed on the grounds of the pendency of the declaratory suit. The Court held that the trial court’s rejection of the application for stay was found to be correct, and there was no infirmity in the impugned order that warranted interference under Article 227 of the Constitution of India.
The Court dismissed the present application with no order as to costs.
[Niladri Dhar v. Pinaki Dhar, 2023 SCC OnLine Cal 3611, order dated 16-10-2023]
*Judgment by Justice Hiranmay Bhattacharyya
Advocates who appeared in this case :
Mr. Niladri Dhar, Petitioner in person
Mr. Biswajit Sau and Mr. Tapan Kumar Jana, Counsel for the Respondent
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