1 WP No.5804/03 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5804 of 2003 (i) Mujibur Rehman Gulam Rehmani (ii)Ubaidur Rehman Gulam Rehmani (iii)Abrar Rehmani Ahmed ... Petitioners versus (i) Mohammhad Atahar Siddique (ii)The Competent Authority ... Respondents ... Mr.P.S. Cardozo for the petitioner. Mr. V.R.Tripathi for respondent no.1. CORAM : D.G. KARNIK, J DATED : 4th March 2011 P.C. 1. Rule returnable forthwith. By consent, taken up for hearing. 2. By this petition, the petitioners challenge the order dated 18 February 2003 passed by the competent authority under the Bombay Rent Act granting stay of hearing to the eviction application filed by the petitioner licensor against the licensee under section 10 of the Code of Civil Procedure. 2 WP No.5804/03 3. The petitioners are the owners of a flat bearing flat no.201 in building no.H/8, Al-Quba Housing Society Ltd, Millat Nagar, Andheri (West) (hereinafter referred to as the “suit flat”). By an agreement of leave and license dated 14 January 1993, the petitioners gave on leave and license the suit flat to the respondent no.1 for a period of 11 months. After the expiry of that agreement by another leave and license agreement dated 1 January 1994, the parties renewed the leave and license in respect of the suit flat for a further period of 11 months. On expiry of the period of second leave and license agreement, petitioner filed an application for eviction of the respondent no.1 before the competent authority. 4. It is the case of the respondent that while the first leave and license agreement was in force, on 5 August 1993, the petitioner, through his power of attorney agreed to sell the suit flat to him for a total consideration of Rs.10,00,000/-. The respondent no.1 thereafter filed a suit bearing Suit no.4659 of 1994 on the original side of this court for a specific performance of the said agreement of sale dated 5 August 1993. The petitioner contested the suit by filing a written statement contending that Mr.Gulam Rehmani, the power of attorney who has executed the agreement dated 5 August 1993, had no authority to enter into an agreement of sale of the suit flat and the agreement was not binding on the petitioner. The suit is still pending in this court and only an interim injunction has been granted restraining the petitioner from transferring or alienating the suit flat to any third party. 3 WP No.5804/03 5. The respondent no.1 made an application before the competent authority to stay the hearing of the application for eviction filed by the petitioner till his suit for specific performance was decided. By an order dated 18 February 2003, the application has been allowed. This petition is directed against the said order. 5. There was some debate as to the applicability of section 10 of the Code of Civil Procedure to the proceedings before the competent authority. However in my view, that controversy need not be addressed to because even if it is held that section 10 of the Code of Civil Procedure applies to the proceedings before the competent authority, in my view, in the facts and circumstances of the case, hearing of the application for eviction cannot be stayed for the reasons indicated below. 6. Section 10 of the Code of Civil Procedure states that 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 the 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. Conditions necessary for the stay of a suit or a proceeding are: (i) that there is any other suit or proceeding pending between the same parties or between the parties under who they or any of them claim litigating under the same bill. 4 WP No.5804/03 (ii)the other suit or proceeding must have been instituted prior to the institution of suit or proceeding which is to be stayed. (iii)The matter in issue in an earlier suit or proceeding must be directly and substantially in issue in the subsequent proceeding which is sought to be stayed. 7. The first two conditions in the present case appear to be satisfied in as much as the suit pending in the High Court is between the same parties and is also instituted earlier than the application for eviction filed before the competent authority. However, in my view the third condition is not satisfied because the matters directly and substantially in issue in the eviction petition before the competent authority are not the same as in issue in the suit no. 4659/94 pending in this court. The matters in issue in an eviction proceeding are whether there is a leave and license agreement between the parties, whether the leave and license period has been terminated or has come to an end by efflux of time and whether a decree for eviction can be passed against the respondent on the ground mentioned in section 13(A2) of the Bombay Rent Act. The matters which are in issue in Suit no.4659 of 1994 are whether there is a valid and subsisting agreement of sale between the parties, whether Mr.Gulam Rehmani who appears to have executed an agreement of sale on behalf of the petitioners had an authority to enter into an agreement of sale of the suit flat on his behalf and some further issues like readiness and willingness of the respondent no.1 to perform his part of the contract. The existence, legality and validity of the leave and license agreement, the period of the license and its expiry and right of the petitioner to evict respondents on 5 WP No.5804/03 expiry of the period of license which are in issue before the competent authority are not the matters in issue in the suit pending in this court. In the circumstances, the condition no.3 mentioned above for grant of a stay is not satisfied the competent authority erred in granting stay to the eviction proceedings. 8. For these reasons, Rule is made absolute. Impugned order is set aside and competent authority is directed to proceed with the hearing of the petition for eviction in accordance with law. It is however ordered that in the event competent authority passes an order of eviction, the same shall not be executed for a period of eight weeks. 9. Request made by the learned counsel for the respondent for stay of operation of this order is rejected. (D.G.KARNIK, J)