Stay of suit

Guest (Querist) 14 February 2010 This query is : Resolved
Fact:- A tenant [Plaintiff] entered in to an agreement for purchasing the rented premises. the landlord [Defendant No.1] played mischief and tried to sold the property to some body else. the tenant filed a civil suit for specific performance. suit was lost by him and so also the first appeal. during the pendency of suit the rented premises was sold to a third person, who was subsequently added as defendant [Defendant No.2] . And the relief of cancellation of the sale deed was also sought by way of amendment. second appeal of tenant/plaintiff has been admitted and the same is pending. Now the Defendant No.2 in the suit, who purchased the property, has filed a suit for eviction against the tenant/plaintiff on the ground of non payment of rent.
Question:- whether the present suit can be stayed on the face of the fact that the second appeal between the same party is pending?

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Parveen Kr. Aggarwal (Expert) 14 February 2010
Whether any kind of stay order has been passed in the second appeal in favour of the tenant (plaintiff)?

Raj Kumar Makkad (Expert) 14 February 2010
No. The facts of both the cases are entirely different so there is no question of staying the earlier suit on the basis of second suit (rent petition).

Parveen Kr. Aggarwal (Expert) 14 February 2010
Mr. Raj Kumar Makkad,

Mr. Amitabha Gupta has not made any inquiry about stay of the ealier suit. Otherwise also, earlier suit can never be stayed.

Guest (Querist) 16 February 2010
Stay order of High court:- the appellant may not be evicted without following the due process of law.

Guest (Querist) 16 February 2010
Dear Mr Makkad
I want stay of the subsequent eviction suit filed by the defendant.

Parveen Kr. Aggarwal (Expert) 17 February 2010
Yes. The second suit can be stayed in view of the fact that the court trying the second suit will have to decide the question of title first which is to be raised by the tenant and which is already an issue in the previously instituted suit.

Section 10 of the Code of Civil Procedure, 1908 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 having 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.

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action."

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