Bombay High Court
Pawankumar S/O. Dewkinandan Modi vs Smt. Sushila Wd/O. Gopal Modi on 11 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.4502 OF 2015
PETITIONER: Pawankumar S/o Dewkinandan
Modi, Aged 45 years, Occu: Business,
(Ori. Defendant)
R/o Mukharjee Ward no.1, Opposite
Dr. Paunikar's Clinic, Ramnagar
Square, Ramnagar, Gondia, Tah. &
Distt. Gondia.
-VERSUS-
RESPONDENT: Smt. Sushila Wd/o Gopal Modi, Aged
41 years, Occu: Business, R/o
(Ori. Plaintiff)
ig Manshar Chowk, Gondia, Tq. & Distt.
Gondia.
Shri P. S. Gavai, Advocate for the petitioner.
Shri V. R. Borkar, Advocate for the respondent.
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CORAM: A.S. CHANDURKAR, J.
DATED: 11
th JULY, 2016.
ORAL JUDGMENT :
1. Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioner who is the defendant in Special Civil
Suit No.20/2013 is aggrieved by the order passed by the trial
Court below Exhibit-27 thereby rejecting the application filed by
the petitioner under Section 10 of the Code of Civil Procedure,
1908 (for short, the Code).
3. The respondent is one of the plaintiffs who has filed
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Special Civil Suit No.29/2011 against various defendants including
the petitioner herein. The suit is for partition, separate possession
and other ancillary reliefs. The shop block on the ground floor on
plot no.58 is also the subject matter of the suit for partition.
Subsequently, the respondent has filed Special Civil Suit
No.20/2013 for specific performance of an agreement dated
17-4-2010 alleged to have been executed by the petitioner for
selling the said shop block to the respondent. The petitioner,
therefore, applied for staying the subsequent suit under Section 10
of the Code. This application has been rejected by the trial Court.
4. Shri P. S. Gavai, the learned Counsel for the petitioner
submitted that the question whether the suit property was
ancestral property and was available for partition was raised in
the earlier suit. In the subsequent suit, the relief of specific
performance in respect of one of the suit properties was sought by
the plaintiff who had filed the earlier suit. According to him, the
subject matter of the suit as well as the parties were identical in
the subsequent suit. He submitted that under Section 10 of the
Code, issues with regard to status of the suit property in the
subsequent suit were directly and substantially involved in the
earlier suit. He, therefore, submitted that the subsequent suit was
liable to be stayed under Section 10 of the Code.
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5. Shri V. R. Borkar, the learned Counsel for the
respondent supported the impugned order. According to him, the
earlier suit was for partition and separate possession of the joint
family property. The agreement dated 17-4-2010 was entered into
by the petitioner by treating the said property as his self acquired
property. As only one property was involved in the subsequent
suit, there was no reason to stay the proceedings of the subsequent
suit.
ig I have heard the respective Counsel and I have perused
the documents filed on record. In Special Civil Suit No.29/2011 a
prayer for partition and separate possession of various properties
including the shop block situated on plot no.58 is under
consideration. In the subsequent suit relief of specific performance
in respect of shop block on plot no.58 as per agreement dated
17-4-2010 has been sought. The issue as to whether the property
was joint family property is in question in the earlier suit. In para
2(a) of the plaint in the subsequent suit, it has been pleaded that
the said shop block was purchased in the name of the petitioner
but with joint family funds. The pleadings indicate that the issue
as to whether the suit property is joint family property or not is
directly and substantially in issue in the earlier suit. Though the
subsequent suit is only in respect of one shop block, the same
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would not make material difference as the issue regarding title and
its nature as to joint family property is directly and substantially in
issue in the earlier suit. The requirements of Section 10 are,
therefore, clearly satisfied. The trial Court by rejecting the
application in question merely considered the agreement dated
17-4-2010 but failed to take into consideration aforesaid relevant
aspects of the matter. Hence, a case for interference has been
made out.
ig In view of aforesaid, the order dated 9-6-2015 passed
by the trial Court below Exhibit-27 is set aside. The application
below Exhibit-27 is allowed in terms of its prayer.
8. The writ petition is allowed in aforesaid terms. No
costs.
JUDGE
//MULEY//
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