1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Satyanarain Vs. The District Judge, Tonk & Ors. (S. B. Civil Writ Petition No.15587/2009) S.B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Judgment: August 18, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Prahlad Sharma, for the petitioner. BY THE COURT: The petitioner is aggrieved by the order dated 28.09.2007, passed by the learned Civil Judge (Junior Division), Newai, District Tonk, whereby the learned Judge has dismissed the petitioner's application under Order 35 Rule 3 of CPC. The petitioner is also aggrieved by the judgment dated 29.10.2009 passed by the District Judge, Tonk, whereby the appeal filed by the petitioner against the order dated 28.09.2007 has been dismissed. In brief, the facts of the case are that the respondent No.3, Smt. Birdhi @ Shakuntala Devi, filed a suit for eviction and recovery of rent along with mesne profit against the petitioner. Against the said suit, the petitioner 2 filed an interpleader suit under Order 35 CPC. Along with the interpleader suit, the petitioner also filed a stay application under Order 35 Rule 3 CPC for staying the proceedings of the suit filed by the respondent No.3. The respondents filed reply to the stay application. However, vide order dated 28.09.2007, the learned trial court dismissed the stay application. Since the petitioner was aggrieved by the order dated 28.09.2007, he preferred an appeal before the District Judge, Tonk. However, vide judgment dated 29.10.2009, the learned Judge dismissed the appeal. Hence, this petition before this Court. Mr. Prahlad Singh, the learned counsel for the petitioner, has contended that while Smt. Birdi Devi, respondent No.3 before this Court, had claimed herself to be the owner of the shop in dispute, the respondent No.4, Kuldeep, had received the rent from the petitioner for a period from 31.05.2001 to year 2004. Meanwhile, the respondent No.5, Anil Kumar Taylor, had lodged a FIR against the petitioner wherein he claimed that the petitioner has encroached upon a property that belonged to him. Since three different persons were claiming to be the owner of the same property – the property in dispute – the petitioner was justified in filing an interpleader suit under Order 35 CPC and in claiming a stay under Order 35 3 Rule 3 CPC. According to the learned counsel, once an interpleader suit was filed under Order 35 CPC, the learned court was duty bound to stay the proceedings for eviction filed by Smt. Birdhi Devi. However, the learned Civil Judge has failed to exercise his power under Order 35 Rule 3 CPC. Moreover, the learned District Judge has also failed to appreciate the fact that as three persons were claiming to be the owner of the property in dispute, under Order 35 Rule 3 CPC the eviction proceedings should have been stayed. Heard the learned counsel for the petitioner and perused the impugned orders. In the order dated 28.09.2007, the learned Civil Judge has clearly noticed the fact that the respondent Nos.3, 4 & 5 had filed a common reply to the application filed by the petitioner under Order 35 CPC. In the stay application, the parties were ad idem that in fact, Smt. Birdhi Devi is the owner of the property in dispute. Therefore, the issue as to who is the actual owner is not even a issue which is alive. Thus, the petitioner had failed to establish even a prima facie case in his favour for seeking the stay of the eviction proceedings. Hence, the learned Civil Judge was certainly justified in rejecting the application. 4 It is not as if the suit for interpleader is filed, the other civil suit has to be stayed automatically. In order to invoke the power under Order 35 Rule 3 CPC, the petitioner was duty bound to establish a prima facie case in his favour. In the present case, the petitioner has failed to establish such a prima facie case in his favour. Therefor, neither the learned Civil Judge, nor the learned District Judge can be faulted in passing the impugned orders. Hence, this Court does not find any perversity or illegality in the order dated 28.09.2007 and in the judgment dated 29.10.2009. Thus, this petition is devoid of any merit. It is, hereby, dismissed. (R.S. CHAUHAN) J. Manoj solanki