Smt. Ranjana Mukunda Gedam vs Sonu @ Surendra Tambi Pillay
2018 Latest Caselaw 265 Bom

                                                                                  1                                                                wp1500.17

                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                 NAGPUR BENCH : NAGPUR

                                                       WRIT PETITION NO.1500/2017

Smt. Ranjana Mukunda Gedam,
aged about 63 Yrs., Occu. Household, 
R/o House No.110, Misal Layout, 
Jaripatka, Nagpur 440 014.                                                                                                                                    ..Petitioner.

           ..Vs..

Sonu  @ Surendra Tambi Pillay,
aged about 33 Yrs., Occu. Private Business, 
R/o House No.31, Ward No.2, Purana 
Godam, Cantonment Area Kamptee, 
Tah. Kamptee, Distt. Nagpur 441 001.                                                                                                               ..Respondent. 
 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----
           Shri Antariksha Meshram, Advocate for the petitioner. 
           Shri E.W. Nawab, Advocate for the respondent.   
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 



                                                                 CORAM :  Z.A. HAQ, J.

                                                                 DATE  :     10.1.2018.


                                                        
ORAL JUDGMENT

1. Heard Shri Antariksha Meshram, Advocate for the petitioner and

Shri E.W. Nawab, Advocate for the respondent.

2. Rule. Rule made returnable forthwith.

3. The respondent has filed Special Civil Suit No.178/2015 against the

petitioner praying for decree for specific performance of contract, permanent

2 wp1500.17

injunction and other ancillary reliefs. This suit is filed on or about 4 th March,

2015. On or about 29th June, 2015, the petitioner has filed Special Civil Suit

No.248/2015 under Section 6 of the Specific Relief Act contending that she is

dispossessed illegally and praying for decree for restoration of possession.

4. In Special Civil Suit No.248/2015 the respondent had filed an

application (Exh. No.10) under Section 10 of the Code of Civil Procedure

praying that as the Special Civil Suit No.178/2015 is filed earlier and as in both

the civil suits the parties are same, the subject matter is same, the issues are

same and the reliefs claimed by the respective parties are almost same, the

proceedings of Special Civil Suit No.248/2015 be stayed till disposal of the

Special Civil Suit No.178/2015. This application is allowed by the learned trial

Judge by the impugned order.

5. Section 10 of the Code of Civil Procedure provides that the civil suit

which is subsequently filed has to be stayed if the issue involved in the

subsequently filed suit is also directly and substantially involved in the

previously instituted suit. The learned trial Judge has overlooked that this

necessary ingredient for exercise of powers under Section 10 of the Code of

Civil Procedure is lacking in the present case and, therefore, the impugned

order is unsustainable. It cannot be said that the issue which will be

considered by the Court while deciding the Special Civil Suit No.248/2015 is

3 wp1500.17

directly and substantially same which will have to be decided in Special Civil

Suit No.178/2015. The learned trial Judge has exceeded his jurisdiction by

allowing the application (Exh. 10) filed by the respondent and staying the

proceedings of Special Civil Suit No.248/2015.

6. Hence, the following order:

(i)                    The impugned order is set aside.

(ii)                   The application (Exh. No.10) filed by the respondent, in Civil Suit

No.248/2015 is dismissed.

                       Rule is made absolute in the above terms. 

In the circumstances, the parties to bear their own costs.

I find that the disposal of Special Civil Suit No.248/2015 is

unnecessarily delayed because of the passing of impugned order. The trial

Court is directed to dispose the Special Civil Suit No.248/2015 till 5 th May,

2018.

The learned Advocate for the respondent has submitted that both

the suits should be tried by the same Court. The respondent may file

appropriate application before appropriate forum, in the matter, if so advised.

JUDGE Tambaskar.