# Kesheri Nandan Agrawal Revisionist v. Smt. Indu Bajpayee

- **Citation:** (2023) 1 ILRA 1316
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-03
- **Case number:** Civil Revision No. 467 of 2012
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kesheri-nandan-agrawal-revisionist-v-smt-indu-bajpayee-49119
- **Pages:** 5

## Headnote

The Provincial Small Cause Courts Act,
1887-Section 25- Civil revision challenges the
order - Rejecting revisionist's application under
Section 10 of the Civil Procedure Code, 1908 -
stay proceedings in SSC Suit No.9 of 2011 -
Defendant is a defaulter tenant - Defendant
contends that the relationship is that of a seller
and buyer due to an alleged oral agreement for
sale - Filed injunction against Plaintiff -
revisionist moves the court to stay citing the
pendency of the earlier suit - Court holds that
Section 10 CPC is not applicable .

Dismissed. (E-9)

List of Cases cited:

## Text

1316 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings merely on the ground that on
09.12.2022 the parties have entered into a
compromise stating that the informant and
the injured persons have pardoned the
accused persons and they do not want any
further proceedings in the matter and the
accused persons may get the proceedings
terminated in terms of the compromise. The
acts allegedly committed by the petitioners
involve firing gun shots in broad day light
hitting two persons in their chests and such
offence is a very serious offence and the
material on record, namely, the medico
legal examination report of the injured
persons and the statements recorded during
investigation,
fully
support
the
FIR
allegations. The offence alleged has to be
treated as a crime against the society and
not against the injured sons of the
informant alone and, therefore, this Court is
of the view that the informant and his sons
have no authority to pardon the accused
persons.

20. Keeping in view the aforesaid
discussion, this Court is of the considered
view that the proceedings of the case
against the petitioners cannot be quashed
on the basis of a compromise entered into
between the parties. The application under
Section 482 Cr.P.C. praying quashing of the
charge sheet and the entire proceedings
initiated on the basis thereof, on the sole
ground that the parties have entered into a
compromise, lacks merits and, accordingly,
the same is dismissed.
----------
(2023) 1 ILRA 1316
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 467 of 2012

Kesheri Nandan Agrawal ...Revisionist
Versus
Smt. Indu Bajpayee ...Opposite Party

Counsel for the Revisionist:
Sri
Arvind
Srivastava,
Sri
Pushkar
Srivastava

Counsel for the Opposite Parties:
Sri S.K. Chaturvedi

The Provincial Small Cause Courts Act,
1887-Section 25- Civil revision challenges the
order - Rejecting revisionist's application under
Section 10 of the Civil Procedure Code, 1908 -
stay proceedings in SSC Suit No.9 of 2011 -
Defendant is a defaulter tenant - Defendant
contends that the relationship is that of a seller
and buyer due to an alleged oral agreement for
sale - Filed injunction against Plaintiff -
revisionist moves the court to stay citing the
pendency of the earlier suit - Court holds that
Section 10 CPC is not applicable .

Dismissed. (E-9)

List of Cases cited:
1. Kanhaiya Lal Vs Draupadi, AIR 1992 MP 88

2. Lachaman Vs Badan Kayalu, AIR 1989 Orissa
154

3. Karri Satya Narayana Vs Pichika, 1996 AIHC
2642 (AP)

4. Aspi Jal & anr. Vs Khushroo Rustom
Dadyburjor, (2013) 4 SCC 333
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Arvind Srivastava,
learned counsel for the revisionist and
perused the record. None appears for the
opposite party. Since service of notice upon
the opposite party has been presumed to be
1 All. Kesheri Nandan Agrawal Vs. Smt. Indu Bajpayee
1317
sufficient on 26.11.2012 this Court is
proceeding to decide the matter.

2. The defendant-revisionist has
instituted this civil revision under Section
25 of the Provincial Small Cause Courts
Act, 1887 (in short ''the Act, 1887') to
quash the order dated 28.07.2012 passed by
Sri A.K. Pundir, ADJ, Court No.1, Jhansi in
SSC Suit No.9 of 2011 by which he
rejected the application 32(C) moved under
Section 10 of Civil Procedure Code, 1908
(in short ''CPC') to stay the proceeding of
the said suit.

3. In brief, facts of the case are that
the plaintiff Smt. Indu Bajpayee filed an
SCC Suit No.9 of 2011 against the
revisionist-defendant on the ground that he
is a defaulter tenant of house no.251
(present no.388) situated at Mohalla Itwari
Ganj, Jhansi at the rate of Rs.1,500/-
monthly rent. He has not paid the rent in
spite of repeated demand since 12.11.2006.
Nar Narayan Das Srivastava son of Sri
Thakur Prasad @ Thakur Das was the
owner of the house in suit from which she
purchased land for a consideration of
Rs.40,000/- and had obtained possession
thereon and started payment of house tax
etc. Rashan Card was also issued at the
address of the house in question. Plaintiff's
father-in-law had also died in this house
and the plaintiff had also taken loan and
repaid it. Later on plaintiff constructed her
residential house in the area of Jar Pahad
and had given the house in suit at the
monthly rate of rent of Rs.1,500/- to the
defendant. Sometimes defendant paid the
rent but since 12.11.2006 he stopped to pay
the rent. Hence, a notice on 11.12.2009 for
demand of money and termination of
tenancy was given and was sent and served
upon the defendant which was replied
mentioning false facts. At the time of
issuance of notice there was arrears of four
months' rent upon the defendant and he did
not pay any rent to the plaintiff within one
month from the date of receipt of notice.
Apart from this the defendant refused to
accept the plaintiff as owner of the house in
suit. Thus, the defendant has committed the
offence under Section 20(A) and (F) of the
UP Act No.13 of 1972. Since the defendant
has not paid rent and is a defaulter and has
also refused the plaintiff to be land-lord,
therefore, the defendant is liable to be
evicted.

4. According to the plaintiff since
12.11.2006 to 11.12.2009, the rent of more
than three years have become time barred
and Rs.76,500/- rent for 51 months is due
against the defendant. According to the
plaintiff since 12.01.2011 Rs.2,000/- per
month as damages is also liable to be
recovered from the defendant. On the basis
of cause of action valuing the suit and after
giving court fees, the plaintiff has filed the
suit for eviction and realization of unpaid
amount of rent and for illegal use and
occupation of house after expiry of the
period of notice.

5. The defendant filed written
statement and almost denied the averments
made in the plaint and in addition to that
has said that plaintiff is neither the owner
of the house in suit nor the defendant is
tenant at the rate of Rs.1,500/- per month of
the house in suit. There is no relation of
land-lord and tenant between the parties.
The defendant is as owner and in
possession since 2003. Earlier it was the
house in dilapidated condition upon which
plaintiff had taken loan and had pledged the
house. Plaintiff and her husband said to the
defendant to sell the house in suit. In
furtherance to that the parties entered into
an agreement to sell the house in suit for
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
Ra.2,35,000/- out of which the defendant
provided
Rs.1,35,000/-
in
cash
on
06.04.2003 and under the alleged oral
agreement for sale he got the possession of
the house in suit.

6. It was settled between the parties
that plaintiff shall repay the loan of the
bank and after taking the house back and
after getting the rest of the amount i.e.
Rs.1,00,000/- she will execute sale deed in
favour
of
the
defendant.
Since
the
defendant was in the need of residence,
therefore, with the permission of the
plaintiff, defendant expended Rs.2,00,000/-
to renovate the house
in suit and
constructed latrine, bathroom and kitchen
and started living therein with his family as
owner of the house. The defendant has
always been ready to get the sale deed
executed according to the oral agreement
for sale. Since there is no relation of landlord and tenant between the parties but the
relation is as seller and buyer, hence the
court has no jurisdiction to try the case.
Plaintiff's husband, Brijendra is necessary
party and the case is barred by non-joinder
of necessary party. When plaintiff and her
husband threatened on 24.02.2011 to
forcefully dispossess the defendant, he filed
an Original Suit No.150 of 2011 (Kesheri
Nandan Agrawal Vs. Smt. Indu Bajpayee
and others) in the Court of Civil Judge
(Junior Division), Jhansi, therefore, this
case being subsequent to the case of the
defendant is barred and is liable to be
stayed under Sections 10 and 151 CPC. The
case is also barred by estoppel and
acquiescence and is liable to be dismissed.

7. During the course of hearing
defendant moved an application 32(C) to
stay the proceeding of this case under
Section 10 CPC on the grounds mentioned
in the written statement. After hearing both
the parties the court below concluded that
the case of the defendant i.e. Original Suit
No.150
of
2011
is
for
permanent
injunction. The matter in issue is not the
same in both the cases. Both the cases
relate to the courts of different jurisdiction.
This case is not liable to be stayed under
Section 10 CPC and accordingly rejected
the application.

8. Being aggrieved the petitioner has
preferred this revision.

9. The opposite party land-lord filed a
counter affidavit dated 16.12.2012 and
denied the allegations mentioned in the
revision. In addition to that the averments
of the plaint has been reiterated and denied
that there has been an oral contract for sale
of the house. It is absolutely false and
incorrect. The answering respondent did
not take a single penny as advanced from
the revisionist for sale of the house in
question.
No
question
of
any
part
performance arises.

10. It is further stated that with an evil
motive the revisionist filed the suit i.e. Suit
No.150 of 2011 for permanent injunction to
harass the land-lord. That case has no
concern with the present suit for eviction
and payment of rent and house tax. The
revisionist had tried to misguide this Court.
The application filed by the revisionist
under Section 10 CPC was misuse of
process of law. Both the cases are different
in nature and have no connection with each
other. Both suits are different and triable by
the different courts and in both the cases
the prayer is not the same. The trial court
had rightly rejected the application under
Section 10 CPC. There is no infirmity in
the impugned order. The interim ex parte
order dated 20.09.2011 passed by this
Court be vacated. Examination-in-chief of
1 All. Kesheri Nandan Agrawal Vs. Smt. Indu Bajpayee
1319
the respondent has been recorded in the
court below. Copy of the evidence
produced as affidavit has been annexed as
annexure-CA-1.
The
defendant
has
requested to dismiss the revision.

11. Contrary to that the revisionist has
filed rejoinder affidavit dated 24.12.2013
and has reiterated the contents of his suit
and the revision and has said that the
decree passed in the earlier suit will operate
as res judicata. Hence, the subsequent suit
is liable to be stayed. The opposite party is
no more remains land-lord after the
agreement. The impugned order is not in
consonance with the provisions of Section
10 CPC. No ground for vacating the
interim order passed by this Court arises.
Hence, the revision be allowed.

12. It is admitted that the property in suit
is an immovable property which can only be
transferred
through
registered
deed
as
envisaged in Section 54 of Transfer of
Property Act and Section 17 of the Indian
Registration Act. About the immovable
property no oral agreement or sale is
permissible. Prima facie no case of title
appears to be involved between the parties.
The defendant revisionist neither filed any suit
for specific performance of contract nor any
oral transaction or agreement for sale is
permissible in respect of immovable property.
Original Suit No.150 of 2011 has been filed
under the Specific Relief Act by the defendant
whereas this suit has been filed under the Act,
1887. Hence, the jurisdiction of both the courts
are quite different. It is to be ascertained that if
a suit is for permanent injunction and another
suit is SCC suit whether in that case
subsequent suit can be stayed under Section 10
CPC. Section 10 CPC 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 have 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.''

13. In Kanhaiya Lal Vs. Draupadi, AIR
1992 MP 88 it is held that stay of a later suit until
decision in earlier suit is a mere rule of procedure.

14. In Lachaman Vs. Badan Kayalu, AIR
1989 Orissa 154 it is held that suit for eviction of
tenant cannot be stayed till disposal of suit for
specific performance of contract between the
tenant and the land-lord's predecessors-in-interest.

15. In Karri Satya Narayana Vs. Pichika,
1996 AIHC 2642 (AP) it is held that Section 10
CPC cannot be invoked in two suits, one for
specific performance of contract and another by
the adversary for ejectment and damages.

16. In Aspi Jal and another Vs. Khushroo
Rustom Dadyburjor, (2013) 4 SCC 333 it is
held that for application of the provisions of
Section 10 of the Code, it is further required that
the Court in which the previous suit is pending is
competent to grant the relief claimed.

17. In this case it is not so. There is no
evidence to establish that the court in which
Original Suit No.150 of 2011 is pending is
also competent to try with the cases of
small cause courts. The proceeding of small
1320 INDIAN LAW REPORTS ALLAHABAD SERIES
cause courts is summary in nature. Hence,
this Court is in conformity with the finding
recorded by the lower court that on the
basis of pendency of Original Suit No.150
of 2011 the SCC suit is not liable to be
stayed under Section 10 CPC.

18. The option was open to the
revisionist to move an application under
Section 23 of the Act, 1887 that since the
question of title is involved, therefore, before
deciding the question of title this SCC suit
cannot be prosecuted any more. He may also
produce evidence and may establish that
there was no relation of land-lord and tenant
between the parties or it had been broken
after entering into the agreement and if the
SCC Court finds that the serious question of
title is involved, it may drop the proceeding
but so far as the applicability of Section 10
CPC is concerned, this Court is of the
considered view that this SCC revision
cannot be stayed on account of pendency of
an original suit previously instituted by the
defendant.

19. On the basis of above, this Court
is of the view that this revision lacks merit
and is liable to be dismissed.

20. Accordingly, this revision is
dismissed with costs.

21. A copy of this order be sent to the
Court of ADJ-I, Jhansi who shall proceed
with the SCC suit in accordance with law.
----------
(2023) 1 ILRA 1320
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 444 of 2012

Smt. Shakuntala Soni ...Revisionist
Versus
Devendra Kumar Rawat ...Opposite Parties

Counsel for the Revisionist:
Sri Gulrez Khan, Sri J.H. Khan

Counsel for the Opposite Parties:
Smt. Abha Gupta, Sri S.R. Gupta

Civil Law - Code of Civil Procedure,1908 -
O.XV Rule 5-Striking off defence-Civil
revision - Rent payment - Order XV Rule 5 CPC-
Striking off defence for failure to deposit
admitted rent- Section 30 of the UP Act No.13 of
1972- plaintiff failed to prove that she paid rent
- Revision lacks merit.

Dismissed. (E-9)

List of Cases cited:

1. Ashik Ali Vs 8th ADJ, 2001 (444) ALR 524.

2. Pradyuman Ji Vs Special/ADJ, Ballia & ors.,
2008 (2) ARC 19

3. Kailash Shukla Vs ADJ, Deoria & ors., 2004
(1) ARC 615

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This civil revision has been
preferred by the tenant defendant against
the order dated 29.05.2012 passed by ADJ,
Court No.1, Banda by which the plaintiff's
suit was decreed on merit after striking off
the written statement of the defendant.

2. In brief facts of the case are that
revisionist Smt. Shakuntala Soni plaintiff
filed an SCC suit in the Court of Judge,
SCC Court, Banda on 04.11.2009 for
eviction of the defendant tenant from the
shop in suit and for realization of rent from