G. P. Mathur, J. - (1.) This appeal by special leave has been preferred by the defendants against the judgment and order dated 17-3-1997 of High Court of Karnataka by which the Regular First Appeal preferred by the plaintiff was allowed and case was remanded to the trial Court with certain directions.
(2.) In order to understand the controversy involved it is necessary to set out the facts which are little involved. (i) The appellant Nos. 6 to 10 are sons and daughters of Shri M. G. Dayal and they were owners of the suit property ( residential building at Jayanagar, Bangalore). They executed an agreement to sell the suit property in favour of Dr. G. Gopalakrishna (plaintiff-respondent No. 1) on 5-12-1974 for a consideration of Rs. 1,42,500/- and received Rs. 42,500/- by way of advance. The respondent No. 1 was also put in possession of the ground floor of the property. (ii) The respondent No. 1 issued a legal notice rescinding the contract and claimed refund of the advance amount paid by him. On 7-11-1977 he filed O. S. No. 801 of 1977 (subsequently renumbered as O. S. No. 1891 of 1980) against the appellant Nos. 6 to 10 (owners of the property) claiming the amount which had been paid by way of advance. After considerable period of time respondent No. 1 moved an amendment application seeking permission to convert the suit into one for specific performance of the agreement of sale. This application was rejected by the trial Court on 3-12-1984 on the ground that the suit for specific performance had become barred by limitation. The Revision Petition preferred against the said order being CRP No. 702 of 1985 was dismissed by the High Court at the admission stage on 29-5-1985. (iii) The appellant Nos. 1 to 5 (Pukhraj D. Jain and his four sons) purchased the property in dispute from the original owners, namely, respondent Nos. 6 to 10 on 18-4-1985 for Rs. 3,60,000/- and they were put in possession of the first floor of the building. (iv) Respondent No. 1 filed an amendment application on 26-6-1985 seeking an amendment of the plaint in O. S. No. 801 of 1977 and claiming an additional amount of Rs. 125 towards the cost of the legal notice. The amendment application was allowed and the respondent No. 1 was required to pay an additional court-fee of Rs. 12.50 in view of the enhanced claim. However, instead of paying aforesaid amount the respondent No. 1 filed a memo stating that he was not in a position to pay the court-fee and as such the plaint may be rejected being deficiently stamped. The trial Court decreed the suit for recovery of the amount on 24-7-1985. (v) Though the suit filed by respondent No. 1 was decreed yet he preferred a revision petition being CRP No. 3797 of 1985 challenging the judgment and decree passed in his favour. The High Court though observed that it was an unusual revision filed by a plaintiff yet allowed the same on 18-2-1987, set aside the judgment and decree of the trial Court and rejected the plaint. (vi) The appellants Nos. 1 to 5 after execution of the sale deed in their favour on 18-4-1985, filed a suit being O. S. No. 4631 of 1986 seeking eviction of respondent No. 1 from the ground floor of the house in dispute and also for mesne profits. (vii) On 2-4-1988 the respondent No. 1 filed another suit being O. S. No. 1629 of 1988 against appellant Nos. 6 to 10 in the Court of City Civil Judge, Bangalore for specific performance of the agreement dated 5-12-1974. In this suit issue No. 3 relating to the bar of limitation and issue No. 4 relating to the maintainability of the suit were framed. The respondent No. 1 also filed an application under Section 10, CPC seeking stay of his own suit O. S. No. 1629 of 1988 on the ground that the issues involved were also directly and substantially in issue in a previously instituted suit being O. S. No. 4631 of 1986 which had been filed by the appellants Nos. 1 to 5 for his eviction from the ground floor of the house and for possession. (viii) The Addl. City Civil Judge, Bangalore dismissed O. S. No. 1629 of 1988 on 30-9-1995 after deciding issues Nos. 3 and 4 wherein he held that the suit was barred by limitation and the same was not maintainable. (ix) The respondent No. 1 preferred RFA No. 635 of 1996 in the High Court against the judgment and decree dated 30-9-1995 of the Addl. City Civil Judge, Bangalore. The High Court allowed the appeal and set aside the judgment and decree of the Addl. City Civil Judge and remanded the matter to the trial Court to dispose of the application moved by the respondent No. 1 (plaintiff) under Section 10 CPC for stay of his suit. It is this judgment and order which is subject matter of challenge in the present appeal. (x) The suit for eviction of respondent No. 1 and possession (OS No. 4631 of 1986) filed by the appellant Nos. 1 to 5 was decreed by the trial Court on 20-12-1997. RFA No. 171 of 1998 preferred by respondent No. 1 against the aforesaid judgment and decree was dismissed by the High Court on 2-7-2001. This development has taken place subsequent to the filing of special leave petition in this Court.
(3.) The only ground urged in the appeal preferred by respondent No. 1 in the High Court was that as he had filed an application under Section 10 CPC on 21-10-1993 seeking stay of his suit (OS No. 1629 of 1988), it was obligatory upon the trial Court to consider the said application first before deciding issues Nos. 3 and 4. The High Court has observed that the defendants in the suit had sought time to file objection in reply to the application moved under Section 10 read with Section 151 of CPC seeking stay of his suit. Thereafter the suit was listed on several dates for consideration of the application but finally, after hearing the counsel for the parties, the learned Addl. City Civil Judge dismissed the suit by deciding issues Nos. 3 and 4 and the application under Section 10 CPC was not at all considered. It was obligatory on the part of the learned Addl. City Civil Judge to have considered the application moved under Section 10 CPC at the first instance before deciding issues Nos. 3 and 4. The High Court has held that the course adopted by the learned Addl. City Civil Judge in not deciding the application moved by the plaintiff and in proceeding to decide issues Nos. 3 and 4 was wholly illegal. On these findings the judgment and decree of the Additional City Civil Judge were set aside and the case was remanded to the court of Additional City Civil Judge with a direction to dispose of the application under Section 10 read with 151 CPC moved by the plaintiff on priority basis.;