JUDGEMENT

Order No.00

Date:29.10.2013

          Ld. Lawyers of both the parties are present.  Today is fixed for hearing the maintainability petition filed by the op challenging the maintainability of this case on the ground that in respect of the same, same fact and premises.  Already Sufia Khatoon filed a suit before the Hon’ble High Court being Civil Suit No.283/2011 and in that suit Sufia Khatoon the present op of this case prayed for a decree of avail of kash possession and vacant possession in respect of flat No.8 of 3^rd Floor at premises No. 68-B, Acharya Prafulla Chandra Road, Kolkata – 700009 and for that decree of Rs.8,20,500/- and net profit and in that case expert decree was passed on 16.10.2012, decree in the said suit.  So the present complaint is not maintainable when decree has already been passed in respect of the present suit.

          On the other hand complainant by filing a written objection has submitted that complainant availed of the possession of the flat on 29.01.2008 of payment of Rs.10 lakhs to the op and since then he had not been possessing the said flat and as such as per agreement dated 29.01.2008 between the parties, the op is bound to register the document and that case was the case of the-------- and further by an order dated 13.08.2013 in Appeal No. GA/2192/2013 – APOT No. 340/2013 arisen out of CS No. 283/2011 an order was passed by the Division Bench of the Hon’ble High Court and ad interim order was passed directing the Asif Ali (the present complainant and the appellant of that appeal) to deposit Rs.9,25,000/- to the Registrar Original Suit and he shall be permitted to continue the possession and if the said amount is not paid within three months from the date of Hon’ble High Court’s order in that case the exparte decree shall be passed by the Hon’ble High Court shall be set aside and if it is paid by the appellant (present complainant) in that case the suit pending before Hon’ble High Court shall be disposed of.

          So, original order passed in CS No. 283/2011 by the Hon’ble High Court would be set aside subject to payment of Rs.9,20,000/- by the present complainant as payment by that case and for which the objection has made by the op that the present complainant is not maintainable is not tenable and for that reason the present complaint should be continued and the present complaint shall be treated as maintainable and objection as made by the op shall be rejected.

          Heard the Ld. Lawyers of both the parties and also considered the fact that Asif Ali the present complainant filed this complaint praying for implementation of the agreement dated 29.01.2008 on payment of balance consideration money in full and schedule of the property is flat No.8 of 3^rd Floor at premises No. 68-B, Acharya Prafulla Chandra Road, Kolkata – 700009 and total consideration of the said agreement was Rs.16,15,000/- and complainant claim is that he has paid Rs.10 lakhs and the present complaint was filed on 02.05.2013.

          But anyhow today complainant has filed the copy of the judgement passed in GA No.2192/2013 – APOT No. 340/2013 arisen out of CS No.283/2011 passed by Hon’ble Division Bench on 13.08.2013 and parties of the said appeal of suit is or was Asif Ali and Sufia Khatoon and appeal was preferred against Sufia Khatoon and original suit filed by Sufia Khatoon against Asif ali in respect of the present flat in question.

          Now we have considered that judgement passed by Hon’ble High Court in Appeal on 13.08.2013 wherefrom it is found that original suit being CS No. 283/2011 is not yet disposed of because it was initially allowed exparte by Hon’ble Judge on 16.10.2012 but against that present complainant preferred appeal and he got such order in respect of agreement for sale dated 29.01.2008 and Hon’ble Judges in Appeal directed the present complainant (as Appellant of that appeal) to deposit Rs.9,25,000/- within three months from the date of this order failing in that case decree shall set aside and possession of the present complainant (Defendant of the Civil Suit of pending Hon’ble High Court) shall be set aside for asserting the suit is not finally decided and parties shall be guided by the result of the said suit.

          Considering that order of the Hon’ble High Court passed in GS No. 2192/2013 (APOT No. 340/2013) arisen out of CS No. 283/2011  passed on 13.08.2013 it is crystal clear that the dispute in respect of the agreement for sale dated 29.01.2008 in respect of flat No.8 of 3^rd Floor at premises No. 68-B, Acharya Prafulla Chandra Road, Kolkata – 700009  is a subject matter of that civil suit before the Hon’ble High Court and considering that agreement of temporary order has been passed by the Hon’ble High Court in GA No.2192/2013 and considering the judgement of the Hon’ble High Court passed in aforesaid suit appeal it is clear that the present complaint was filed in the month of May 2012 whereas in respect of the present dispute a Civil Suit was filed by the present op against the complainant before Hon’ble High Court being CS No.283/2011.  Though it was heard exparte and final order was passed but against present complainant preferred appeal being GA No.2192/2013 and in the appeal he has got interim order in respect of on the basis of the present agreement.

          So, it is clear that the present subject matter of the suit of Civil Suit is pending before the Hon’ble High Court and complainant has got such temporary order in appeal on the basis of the agreement to sale and practically on the basis of the ad interim order present complainant is permitted in the case premises subject to payment of Rs.9,25,000/- within three months from the date of passing the order on 13.08.2013  by the Hon’ble High Court and considering that order of the Hon’ble High Court passed in that appeal, it is clear that the present dispute is also subject matter of the suit as defence of the complainant in the said CS No. 283/2011 and it is specifically mentioned in the order of the appeal of the Hon’ble High Court passed on 13.08.2013, the entire dispute and the subject matter of the suit and the defence of the op shall be decided by the Hon’ble High Court in CS No. 283/2011.  But in the mean time the present complainant as defended appellant got such protection from the Hon’ble High Court for regular implementation of the agreement to sale on the basis of ad interim order the present complainant shall get such interim benefit  to the suit in the premises subject to payment of Rs.9,25,000/- and thereafter the original suit decided on merit after considering the entire agreement to sale dated 29.01.2008.

          In view of the above fact and circumstances, it is proved prior to filing of the complaint the relief as claimed by the complainant in this complaint had been entertained by the Hon’ble High Court in appeal and he has given such interim benefit subject to payment of Rs.9,25,000/- and his claim shall be decided in CS No. 283/2011  pending before Hon’ble High Court and in respect of present claim, complainant got such temporary relief of Hon’ble High Court and original suit in respect of claim of the complainant as defined shall be decided in the said CS No. 283/2011 in that case this present Forum has no jurisdiction to entertain the present complaint in view of the fact prior to filing of this complaint a decision was passed by the Hon’ble High Court.

          Thereafter, complainant files this complaint and in the mean time he preferred appeal against the exparte and Hon’ble High Court gave the interim relief and no doubt if complainant pays Rs.9,25,000/- before Hon’ble High Court in that case the original suit should be deemed and contested and present agreement shall be a subject matter for decision.

          In the above position we are confirmed that in any circumstances, complainant had no scope to file this complaint before this Forum because the present dispute had already been taken by the Hon’ble High Court and Hon’ble High Court has granted ad interim relief to the complainant on the basis of the agreement dated 29.01.2008 and for which in all respect the present complaint is not maintainable before this Forum when Hon’ble High Court is in saesin to decide the such dispute and not only that the complainant got ad interim relief in appeal in respect of present prayer.

          In the result the objection as filed by the op challenging the maintainability case is found legal and bona fide and for which prayer of the op challenged in the maintainability his case is allowed on contest.

          Hence, it is

                                                   ORDERED

          That the present complaint be and the same is dismissed on the ground the present complaint is not maintainable in view of the fact in respect of the present dispute CS No. 283/2011 appeal No. 2192/2013 are pending before Hon’ble High Court wherefrom complainant and op shall have to get relief and Hon’ble High Court is already in saesin to decide this dispute.