JUDGMENT

L. MOHAPATRA, J. — This writ application is directed against the order dated 16.11.2004 passed by the learned Civil Judge (Senior Division), Balasore in Civil Suit No.809 of 2003-I rejecting the application filed by the defendants under Section 10 of the Code of Civil Procedure for stay of further proceeding of the suit.

2. The opposite parties have filed the aforesaid suit praying for decree of eviction against the defendants-petitioners from the first floor of the building standing over the A-schedule of property and for delivery of vacant possession thereof. The petitioners who were defendants in the said suit filed an appli¬cation under Section 10 of the C.P.C. on the ground that the vendor of the plaintiffs-opposite parties had entered into an agreement with the father of the defendants-petitioners for sale of the land. For non-performance of the contract the father of the defendants-petitioners had filed Title Suit No.903 of 2000 and the plaintiffs-opposite parties had also filed Title Suit No.725 of 2000 for eviction. Both the suits were heard analogous¬ly by the learned Civil Judge (Senior Division), Balasore. Title Suit No.903 of 2000 was dismissed against which R.F.A. No.151 of 2003 has been filed before this Court. In the earlier suit filed by the plaintiffs i.e. T.S. No.725 of 2000 was decreed in part and challenging the same R.F.A. No.152 of 2003 has been filed before this Court. Both the first appeals are pending disposal before this Court. On these grounds, it was contended by the learned counsel for the defendants-petitioners that if R.F.A. No.151 of 2003 is allowed and the vendor of the plaintiffs is directed to perform part of the contract, then no suit for evic¬tion can lie at the instance of the plaintiffs. Learned trial Court rejected the petition on the ground that the present suit and the earlier suits are not identical and the issues are di¬fferent and therefore application under Section 10 of the C.P.C. is not maintainable.

3. Shri Kar, learned counsel for the petitioners referring to T.S. No.903 of 2000 filed by the father of the defendants-petitioners submitted that much prior to sale of the disputed premises to the plaintiffs, the vendor of the plaintiffs had entered into an agreement with the father of the defendants for sale of the land and due to non-performance of contract the said suit was filed for specific performance of contract. Even though the suit was disposed of by the trial Court, an appeal has been carried to this Court and the same is pending consideration. According to Sri Kar, learned counsel appearing for the defen¬dants-petitioners, in the event the first appeal is allowed, the vendor of the plaintiffs has to execute sale-deed in favour of the defendants-petitioners and therefore the sale in favour of the plaintiffs shall be of no consequence and accordingly the plaintiffs cannot maintain the suit for eviction. Learned counsel for the opposite parties, on the other hand, submitted that issues in Title Suit No.903 of 2000 and the present suit are completely different and therefore the subject matter of the suit not being the same, there is no reason why further proceeding in the present suit should be stayed.

4. Admittedly, Title Suit No.903 of 2000 was filed by the father of the defendants for specific performance of contract against the vendor of the plaintiffs. Said suit was dismissed by the learned Civil Judge (Senior Division), Balasore and R.F.A. No.151 of 2003 is pending before this Court challenging the said judgment and decree. Case of the defendants is that an agreement between the father of the defendants and the vendor of the plain¬tiffs was executed prior to sale in favour of the plaintiffs. It was submitted by Sri Kar, learned counsel appearing for the defendants-petitioners that in the event R.F.A. No.151 of 2003 is allowed, the vendor of the plaintiffs has to execute sale-deed in favour of the defendants and therefore the plaintiffs cannot maintain suit for