Hon'ble VYAS, J.—In this writ petition filed under Article 227 of the Constitution of India, petitioner plaintiff is challenging the validity of impugned order dated 21.7.2012 (Annex. 6) passed by Civil Judge (J.D.) Nohar in Civil Original Suit No. 75/2011 and prayed that while quashing the above order, the application filed by the respondent No. 1 under Section 10 of CPC may kindly be dismissed and trial Court may be directed to proceed with the suit expeditiously.

2. As per facts of the case, a suit for eviction was filed in the year 1996 by the petitioner plaintiff on the ground of material alteration in the court of Civil Judge (J.D.), Nohar under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 [hereinafter referred to as `the Act of 1950'] and the suit was dismissed by Civil Judge (J.D.) Nohar. Against that judgment and decree, an appeal was preferred by the petitioner. The Additional District Judge Nohar allowed the appeal filed by the petitioner plaintiff and decree for eviction was passed in favour of the petitioner on the ground of material alteration.

3. The respondent defendant preferred second appeal before this Court against the judgment dated 23.2.1999 passed by the Additional District Judge, Nohar in appeal filed by the petitioner. The said second appeal was registered being S.B. Civil Second Appeal filed by the petitioner. The said second appeal was registered being S.B. Civil Second Appeal No. 104/99 which is said to be pending before this Court.

4. In the second appeal filed by the respondent defendant, stay is operating upon execution of the decree passed by the appellate court.

5. The Act of 1950 was repealed on 1.4.2003 and new Act known as Rajasthan Rent Control Act, 2001 came into force. Thereafter on 15.3.2011 a notice under Section 106 of Transfer of Property Act was served upon the respondent No. 1 by the petitioner plaintiff and his tenancy was terminated.

6. After termination of tenancy, the petitioner plaintiff filed a civil original suit No. 75/2011 for eviction in the court of Civil Judge (J.D.) Nohar under the provisions of Transfer of Property Act, 1882.

7. The respondent defendant filed an application under Section 10 of CPC before the trial court in the suit with the prayer that earlier suit filed by the petitioner plaintiff for eviction and this suit is also filed for eviction in both the suit parties are the same, therefore, the proceedings of subsequent suit may be stayed till final decision of second appeal pending in this Court. The trial court passed an on 21.7.2012 whereby, the application filed under Section 10 of CPC by respondent No. 1 was allowed and Civil Judge (J.D.) Nohar stay ed the proceedings of civil suit No. 75/2011 till disposal of the second appeal by this Court.

8. Learned counsel for the petitioner vehemently argued that cause of action in both thee suits are different. Earlier suit was filed under the provisions of Act of 1950 on the ground of material alteration whereas, after repealing of said Act, petitioner gave notice under Section 106 of Transfer of Property Act and terminated the tenancy thereafter, filed civil suit for eviction against thee respondent defendant, as such cause of action in both the proceedings are entirely different, therefore, trial court ought to have considered the above aspect of the matter at the time of deciding application under Section 10 of CPC.

9. Learned counsel for the petitioner submits that the present suit for eviction has been filed after service of notice under Section 106 of Transfer of Property Act for terminating the tenancy and earlier suit was filed under the Act of 1950 on the ground of material alteration, therefore, in view of judgment rendered by Hon'ble Supreme Court reported in AIR 2005 SC 242 `National Institution of Mental Health and Neuro Sciences vs. C. parameshwara', the subsequent suit is maintainable and proceedings of that suit cannot be stayed because cause of action and grounds in both

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