Point of Law: fundamental test to attract Section 10 is whether on the final decision being reached in the previous suit such decision would operate as res-judicata in the subsequent suit.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. B.C. Das, learned senior counsel for the petitioner assisted by Mr. P. Sundi, learned counsel as well as Mr. P. Pathak, learned senior counsel assisted by Mr. A. Narzari, learned counsel appearing for the respondent.

2. This is an application under Article 227 of the Constitution of India challenging the order dated 01.07.2019 passed in Title Suit No. 22/2018 by the learned Munsiff, Biswanath Chariali, whereby the Court below rejected the application under Section 10 of the CPC, 1908 for stay of the suit.

3. For the purpose of disposal of the instant application, it is relevant to take note that the petitioner had filed a suit being registered and numbered as Title Suit No. 54/2018 in the Court of the learned Civil Judge, Tezpur. The case of the petitioner as plaintiff in the said suit is that the petitioner carried on his business in the name and style of the proprietor firm “M/s Ashok Motors” which is the authorised dealer of Mahindra and Mahindra vehicle. It is the case of the plaintiff/petitioner that as he was looking for a land for developing and to start the business of dealership of Mahindra and Mahindra, he came across the proforma defendant who is the husband of the defendant. The defendant admittedly owns a plot of land measuring 1 katha 10 lecha covered by Dag No. 973 periodic Patta No. 128 situated at village Lehugaon under Biswanath mouza, which is more specifically described in Schedule-A to the said plaint. On proper negotiation between the plaintiff and the defendant in the said suit, a deed of agreement was entered into on 21.05.2012 whereby, a plot of land measuring 30 feet in front side and 50 feet in length would be leased out and the said deed of lease agreement was for a period of 18 years and the monthly rental for the land was fixed at Rs. 5,500/- per month and the monthly rental would be enhanced @ 10% after expiry of every 3 (three) years.

4. The petitioner had also in pursuance to the Deed of lease agreement transferred certain funds as alleged in the plaint and the defendant/respondent herein, with the help of her husband built a house over the area specified. It was also agreed that the amount advanced by the petitioner to the respondent would be adjusted @ Rs. 1,500/- per month against the monthly rental. Upon completion of the said house building, the petitioner started his business over the house. In the year 2017, the petitioner entered into an additional agreement to lease whereby the additional plot of land measuring 25 feet length and 22 feet breadth would be leased out to the petitioner as per the terms and conditions of the said additional lease agreement. Subsequent thereto, certain disputes arose between the petitioner and the respondent herein and taking into consideration the steps taken by the defendant/respondent in initiating the proceedings before the Circle Officer, Biswanath Chariali and the issuance of a pleaders notice on 31.10.2018, the petitioner filed the suit seeking specific performance of execution and registration of formal lease deed of the land described in Schedule-B for mandatory and permanent injunction etc. For the purpose of the instant lis it would be relevant to quote the reliefs as sought for in Title Suit No. 54/2018:

(1) To pass a decree of specific performance of execution and registration of a formal lease deed for the entire leasehold land measuring 30 feet in breadth × 50 feet in length in the front and 22 feet in breadth × 25 feet in length just behind the above former area of lease incorporating all the terms and conditions as enumerated in the Deed of Lease Agreement dated 21.05.2012 and in the Deed of Lease Agreement dated 22.05.2017, and in case of failure of the defendant to execute the lease deed, the Hon’ble Court may kindly get the same executed and registered by deputing its officer.

(2) To pass a decree by way of a mandatory injunction against the installation matching with the quality of the standard of sh