Chandrakant Shankarsa Chavan And ... vs Sou.Chandrakala Balayya Kodam
2022 Latest Caselaw 10345 Bom

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                                                                                         (30)-SA-453-18.doc


                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          Digitally
          signed by
                                             CIVIL APPELLATE JURISDICTION
          BALAJI
BALAJI    GOVINDRAO
GOVINDRAO PANCHAL
PANCHAL   Date:
          2022.10.11
                                            SECOND APPEAL NO.453 OF 2018
          10:10:34
          +0530
                       Chandrakant Shankarsa Chavan & Anr.                       ..Appellants
                               Versus
                       Sou. Chandrakala Balayya Kodam                            ..Respondent


                       Mr. Bhushan Walimbe i/by Priyal Sarda, for the Appellants.
                       Mr. Ashok B. Tajane, for the Respondent.


                                                             CORAM : NITIN W. SAMBRE, J.

DATED : 7th OCTOBER, 2022 P.C.:

1. This appeal is by the original plaintiff whose suit for declaration and injunction came to be decreed on 14 th September, 2016 by the order of Joint Civil Judge, Junior Division, Solapur.

2. The said decree was subject matter of challenge in Regular Civil Appeal No.273/2016 and vide impugned judgment dated 30 th October, 2017 the said appeal came to be allowed. As such, this second appeal.

3. My attention is invited to the decree passed in Special Civil Suit No.122/2010 which was for specific performance decreed at the behest of the present appellants. It is claimed that the said suit was initiated prior in point of time than the present suit i.e. RCS No.19/2013 and as such, the provisions of Order II Rule 2 of the CPC will not apply or attracted in the case in hand. The specific plea is raised that the present suit is based on

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(30)-SA-453-18.doc

cause of action i.e. notice dated 24 th July, 2012 issued by the respondent/defendant.

4. I have considered the said submissions in the light of the resistance shown by the counsel for the respondent/defendant who has claimed that since both the suits involve same property and the similar type of transaction with the same parties, provisions were rightly invoked. In the aforesaid background, in my opinion, once the suit is based on cause of action accrued subsequent to the finding of earlier suit Special Civil Suit No.122/2010, the applicability of provisions of Order II Rule 2 of CPC is under cloud. As such, the appeal is admitted on following question of law :-

a) Whether the appellate court has committed an error apparent on the face of record in invoking provisions of Order II Rule 2 of CPC for dismissing the suit of appellant/plaintiff in spite of the fact that cause of action is accrued subsequent to initiation of earlier suit for specific performance being Special Civil Suit No.122 of 2010 ?

5. Mr. Ashok Tajane, waives for respondent.

6. Paper-book be submitted within period of six months from today.

7. Call record and proceedings.

                                                     (NITIN W. SAMBRE, J.)




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