Bombay High Court
Sudam Balu Shinde And Ors vs Gopal Balu Shinde And Ors on 10 March, 2021
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
(9) wp-11643-2019.doc
BDP-SPS
Bharat
D.
Pandit
Digitally signed
by Bharat D.
Pandit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Date:
2021.03.12
14:37:58 +0530
WRIT PETITION NO. 11643 OF 2019
Sudam Balu Shinde and Ors. ...Petitioner(s)
V/s
Gopal Balu Shinde and Ors. ....Respondent(s)
Mr. Nikhil Wadikar i/b Mr. Nandu Pawar for the Petitioners.
Mr. Rushikesh Barge for Respondent Nos.1, 2 and 4.
CORAM: NITIN W. SAMBRE, J.
DATE: MARCH 10, 2021
P.C.:-
1] The first suit viz. Regular Civil Suit No.370 of 2009 came to be
filed by the Petitioners/Plaintiffs against Respondents and the second suit viz. Regular Civil Suit No.486 of 2015 came to be filed by the Respondents against the Petitioners/Plaintiffs. The first suit filed by the Petitioners/Plaintiffs was for declaration and injunction and the second suit filed by the Respondents/Plaintiffs was for partition and mesne profit. Parties to both the suits are similar but for interchangability in these suits as Plaintiffs and Defendants. As far as RCS No.486 of 2015 is concerned, the property which is covered in the suit of the Petitioners/Plaintiffs is also subject matter of partition in 1/3 (9) wp-11643-2019.doc the second suit i.e. R.C.S. No.486 of 2015.
2] In the aforesaid backdrop, under Section 10 of the CPC, application-Exhibit-35 preferred by the Petitioners came to be rejected vide impugned order dated 11/7/2019.
3] Submissions are, order impugned is not sustainable as the Court below failed to consider nature of claim in both the suits so also parties and issues involved therein. According to the learned Counsel for the Petitioners, property which is subject matter of both these suits is very much identifiable and that being so, court below, while rejecting the prayer, committed an error.
4] Considered submissions.
5] Fact remains that first suit by the Petitioners is for declaration and injunction which is based on theory of already existing partition. The suit was dismissed on 4/7/2015 and appeal is pending in the Court of District Judge, Satara. True it is that property mentioned in the aforesaid appeal is also subject matter of the second suit i.e. RCS 2/3 (9) wp-11643-2019.doc No. 486 of 2015 which is for partition. Petitioners in the first suit have failed to establish their claim that suit property was subjected to partition.
6] In the aforesaid backdrop, if we consider very scheme of Section 10 of the CPC, same is procedural in nature. Any decree passed contrary to the said provision of Section 10 cannot be termed as void and that being so, it cannot be inferred that the provisions are mandatory in nature. Always a lever is given to the Court to deal with the proceedings before it in accordance with law. 7] As far as aforesaid findings are concerned, support can be drawn from the judgment of the Apex Court in the matter of Pukhraj D. Jain and others vs. G. Gopalakrishna reported in AIR 2004 SC 3504. 8] In the aforesaid backdrop, the Court below, in my opinion, was justified in dismissing the Application.
9] In view of above, Petition stands dismissed.
( NITIN W. SAMBRE, J. ) 3/3