Bombay High Court
Dnyanoba Balbhim Salunke vs Sarjerao Dhondiba Salunke on 12 March, 2014
Author: Ravindra V.Ghuge
Bench: Ravindra V.Ghuge
( 1 ) Writ Petition No.9382 of 2013
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9382 OF 2013
Dnyanoba Balbhim Salunke PETITIONER
VERSUS
Sarjerao Dhondiba Salunke RESPONDENT
Mr.T.G.Gaikwad, Advocate for petitioner.
Mr.Vivek Bhavthankar, Advocate for respondent.
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 12/03/2014
ORAL JUDGMENT :
1. Heard the learned Advocates for the respective sides. Rule.
Rule made returnable forthwith and heard finally by consent of the parties.
2. The issue before this Court is that the respondent filed RCS No.254/2011 before the Jt.Civil Judge, J.D. Ambejogai against the present petitioner and his mother. The suit was with reference to the same survey number, same gat no.580 admeasuring 72R. There is no dispute between the litigating parties before this Court so far as ::: Downloaded on - 29/03/2014 18:56:42 ::: ( 2 ) Writ Petition No.9382 of 2013 this aspect is concerned.
3. By the said RCS No.254/2011, the respondent claimed before the Trial Court that the petitioner is interfering with the peaceful possession of the respondent and therefore the respondent has sought a simplicitor declaration and injunction against the petitioner.
There is no dispute so far as this aspect also is concerned.
4. The petitioner states that he has filed RCS No.354/2012 before the same Court contending therein that the same Gat No.580 admeasuring 72R has been unlawfully possessed by the respondent, the petitioner is unlawfully dispossessed and by his suit, the petitioner has prayed that the respondent be evicted and the same suit property be handed over to the petitioner. On this aspect as well, there is no dispute between the parties.
5. The respondent, accordingly, moved an application below Exh.
23, taking recourse to Section 10 of the C.P.C. Section 10 of The C.P.C. reads thus :
"10. Stay of suit : No Court shall proceed with the trial ::: Downloaded on - 29/03/2014 18:56:42 ::: ( 3 ) Writ Petition No.9382 of 2013 of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government] and having like jurisdiction, or before [the Supreme Court]."
6. With the aid of Section 10 of the CPC, the respondent sought staying of RCS No. 354/2012 filed by the petitioner on the ground that the cause of action involves the same Gat No., the same piece of land, the same litigating parties and both the parties are litigating to occupy and possess the same land. The petitioner resisted the said application before the learned Lower Court.
7. By the impugned order dated 24/07/2013, the learned Court came to a conclusion that the case of the petitioner herein is squarely covered by, "matter in issue is directly and substantially in issue in a previously instituted suit between the same parties." In light thereof, the learned Lower Court came to a conclusion that the suit filed by ::: Downloaded on - 29/03/2014 18:56:42 ::: ( 4 ) Writ Petition No.9382 of 2013 the petitioner, which is later in point of time, deserves to be stayed in view of the ambit of Section 10 of The C.P.C. The petitioner is aggrieved on the said count.
8. I have heard the learned Advocates for quite some time and with their assistance, have gone through the petition paper book.
9. The petitioner relies upon a judgment of the Hon'ble Supreme Court (3 Judges Bench) in the case British India Corporation Limited Vs. Rashtraco Freight Carriers, reported at 1996(4) SCC 748 to buttress his contention that the causes of action between his suit and the suit of the petitioner are totally different. The facts of the case before the Apex Court in British India Case (supra) are that one party was seeking recovery of outstanding dues towards another party. The claim was for the recovery of alleged dues payable. The other party, which was the appellant before the Apex Court, filed a suit for recovery of goods, which were earlier lawfully entrusted to the respondent and were unlawfully detained by it. In light of these facts, the Apex Court concluded that the causes of action are entirely different and neither there were common issues directly involved or ::: Downloaded on - 29/03/2014 18:56:42 ::: ( 5 ) Writ Petition No.9382 of 2013 substantially in the said suit.
10. In the instant case, both the parties are seeking possession of the same suit land. The respondent filed his suit for preventing further interference and nuisance of the petitioner seeking declaration and injunction. The petitioner, by its later suit, claims that the same suit property has been illegally possessed by the respondent and he has been illegally dispossessed.
11. Mr.Gaikwad has also relied upon the case of ASPI Jal and another Vs.Khushroo Rustom Dadyburjor, (2013) 4 SCC 333. The facts before the Apex Court in the case of ASPI Jal (supra) were that the grounds for eviction were based on non user of premises.
Different periods of non-user, were identified and based on each period of non-user, an independent cause of action arose, for which an independent suit was filed. The Apex Court concluded that since the causes of action would be distinct in each case as they pertain to different periods of non user, the applicability of Section 10 of the CPC was turned down. The facts of the case before the Apex Court are totally different and distinct than the facts before this Court.
::: Downloaded on - 29/03/2014 18:56:42 :::( 6 ) Writ Petition No.9382 of 2013
12. In my view, therefore, the British India case and Aspi Jal case (supra) do not assist the petitioner. The cause of action in this petition is substantially and directly in issue. The impugned order of the Trial Court does not suffer from illegalities or any perversities.
13. Be that as it may, in view of the serious apprehension of the petitioner and to meet the ends of justice, I find it appropriate to allow the petitioner to raise all contentions which he has set out in this petition and in his suit before the Trial Court in RCS No. 254/2011.
14. With the directions given in paragraph No.13 of this order, the petition is disposed of. Rule is discharged with no order as to costs.
( RAVINDRA V.GHUGE, J.) khs/Mar.2014/wp9382-13 ::: Downloaded on - 29/03/2014 18:56:42 :::