High Court · 2023
Legal Reasoning
Ethape( 1 ) WP-13298-2023IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 13298 OF 2023WITHWRIT PETITION NO. 13299 OF 20231. Bandu Sahadu KulangeAge: 67 years, Occu. Agriculture,R/o. Shivprasad, Near Lalit Library,Shivneri Marg, Station Road, Ahmednagar.2. Saraswati Vishwanth Kulange,Age 68 years, Occu. Household,R/o. Shivprasad, Near Lalit Library,Shivneri Marg, Station Road, Ahmednagar.3. Virendra Vishwanth Kulange,Age: 49 years, Occu. Business,R/o. Shivprasad, Near Lalit Library,Shivneri Marg, Station Road, Ahmednagar....PETITIONERSVERSUS1. Ramchandra @ Rameshbhau BhingardiveAge: 40 years, Occu. Labor,R/o. Room No.5, Veershruti,At Post, Wanwadi Bazar, Tq. & Dist. Pune. 2. Subhash Gangaram Zine,Age: 56 years, Occu. Agril & Business,R/o. Maniknagar, Ahmednagar,Tq. Ahmednagar, Dist. Ahmednagar.
Legal Reasoning
Ethape( 2 ) WP-13298-20233. Rukmini Gulabrao Karale,Age: 58 years, Occu. Agril & Household,R/o. In front of ZP High School,Ahmednagar, Tq. & Dist. Ahmednagar. 4. Balasaheb Pandharinath Shelke,Age 47 Years, Occu. Agril & Business,r/o. In front of ZP High Court, Ahmednagar, Tq & Dist. Ahmednagar. 5. Suresh Punjaji Waghaskar,Age 77 Years, Occu: Agril & Business,R/o. Wadarwadi, Bhingar,Tq. & Dist. Ahmednagar.6. Suchitra Umesh Zagde,Age 49 Years, Occu: Household, R/o. Flat No.903, C Building, Golden Petal, Dodhane Nagar, Near Tree High School, Pune Dist. Pune. 7. Sangeeta Jitendra JadhavAge 53 Years, Occu. HouseholdR/o. Flat No.8 Natraj Apartment,Giraja Housing Society, Daund Road,Pune Dist. Pune.8. Rohini Shivprasad Tilekar,Age 51 years, Occu. Household,R/o. Matoshri Bangla, near new bus stand.Suraj Nagar, Akluj, Tq. Malshiras, Dist. Solapur. …RESPONDENTS Mr. G. K. Naik Thigle Advocate for the petitioners. Mr. R. K. Ashtekar Advocate for Respondent No.1.Mr. S. V. Natu, Advocate for Respondent Nos. 2 to 5. Respondent No. 6 to 8 are served. Ethape( 3 ) WP-13298-2023CORAM:KISHORE C. SANT, J.RESERVED ON:4th FEBRUARY 2025PRONOUNCED ON:24th FEBRUARY 2025ORDER :-1.Heard the learned Advocates for the parties. 2.This petition is filed by original defendant Nos.1 and 2 challengingan order passed by the learned Civil Judge, Senior Division, Ahmednagardated 3rd July 2023 on an application below Exh. 86 in RCS No. 501 of2013 whereby the application under Section 10 of Code of CivilProcedure, 1908 (for short “CPC”) for stay of the suit, came to berejected. The respondent No.1 is the original plaintiff. The otherrespondents are the original defendants. 3.The facts giving rise to Writ Petition No.13298 of 2023, in short,are that the respondent No.1-plaintiff filed a suit against thesepetitioners for possession of the suit land. Mandatory injunction isprayed seeking direction not to sell and dispose of the land and fromcreating third party interest. It is the case of the plaintiff that he was Ethape( 4 ) WP-13298-2023adopted by one Shantabai Bhau Bhingardive and Bhau EknathBhingardive, who are no more and thus, he got a right in the suitproperty. Shantabai and Bhau were the original owners of the land. Thedefendant Nos.1 and 2 earlier cultivating the land of ShantabaiBhingardive. Because of such relationship, the defendants gotagreement to sale executed on 5th November 1985 and thereafter, hadfiled a suit for specific performance against Shantabai. The said suit wasdismissed. However, the appeal bearing RCS No.568 of 2012 filed by thepresent petitioners came to be allowed. The another Appeal No.570 of2012 filed by the other defendants came to be allowed. The plaintiffhowever, was not a party to the suit and to the said appeal. Now, it isreported that, the Second Appeal No.399 of 2020 filed at the instance ofpresent petitioner and the same is pending before this Court at pre-admission stage. 4.On this background, the present petitioners filed an applicationunder Section 10 of the C.P.C. praying for stay of the suit. It is the casethat the suit property and the subject matter of the earlier suit and the Ethape( 5 ) WP-13298-2023present suit are one and the same. The issue in both these suit is directlyor substantially is the same. The outcome of the Second Appeal wouldaffect the proceeding of the present suit and thus the prayer for stay ofthe suit was made. The learned trial Court did not accept this case andrejected the application. Hence, the petitioners are before this Court. 5.So far as Writ Petition No.13299 of 2023 is concerned, the suit wasfiled for possession by Respondent Nos.1 to 4 against the presentpetitioners seeking possession of the land which was allegedly in illegalpossession of the petitioners. The cause of action is alleged to be sale-deed executed by the applicants and Respondent No.3 and 4 dated 13thNovember 2006. Since subject matter of both the writ petitions is same,this Court is deciding these petitions together. These petitioners in thesaid suit filed an application under Section 10 of CPC stating that thesubject matter of the suit which is pending in the Second Appeal arisingout of Special Civil Suit No.68 of 2004. The said application came to berejected and thus, this petition is filed.6.Mr.Naik-Thigle, the learned Advocate for the petitionersvehemently argued that, Regular Civil Suit No.501 of 2013 was for Ethape( 6 ) WP-13298-2023recovery of possession from the present defendant Nos.1 and 2. If theprayers in the present suit are seen, the same is also for possession of thesuit land. Therefore, it is necessary to stay the suit. He submits thatthere is averments about Special Civil Suit No.68 of 2004 and of theagreements to sale in the plaint itself. He submits that issue No.4 in RCSNo. 501/2013 would show that the issue involved is the similar/same. 7.Mr. Ashtekar, the learned Advocate appearing for Respondent No.1submits that the earlier suit was necessarily for the specific performance.The possession is sought for by way of grant of decree for specificperformance whereas, the present suit is for possession on the basis oftitle and is not barred. The principle for stay of the suit are that whetherthe judgment in the earlier suit would operate as res-judicata in thesubsequent suit. Applying this test, he submits that the trial Court hasrightly rejected the application. He relied on the judgment in the case ofAspi Jal and Another Vs. Khushroo Rustom Dadyburjor.1 He invitesattention of the Court to the issue framed in both the suits. 1(2013) 4 SCC 333 Ethape( 7 ) WP-13298-20238.Learned Advocate Mr.Natu appearing for Respondent Nos.2 to 5submits that though the suit property is the same in both the suits, theissues involved are totally different. The earlier suit was for specificperformance of the agreement and the same is dismissed. Even theappeal is dismissed. Though the second appeal is pending since 2018, itis not admitted. If, at all, the second appeal is allowed, the petitionerswould get a specific performance of an agreement. The present suit is asuit only for recovery of possession and there is no issue of specificperformance etc. So long as, the second appeal is only pending foradmission and is not admitted, it cannot be said that the proceeding ispending. He submits that both the petitions deserve to be dismissed. 9.From looking at the pleadings in the present suit, it is seen that thesuit is for possession of the suit property and for injunction against thedefendant from causing interference in the suit property. It was pleadedthat, by taking disadvantage of illiteracy of deceased-mother of theplaintiff, the deed was got executed by the present petitioners. Lookingto the prayers, no relief is claimed in respect of alleged agreement tosale which was subject matter of RCS No.501 of 2013. Looking at the Ethape( 8 ) WP-13298-2023prayers in RCS No.501 of 2013, this Court finds that it is only based onthe agreement to sale where the prayer is necessary for specificperformance of an agreement. The first issue was in respect ofexecution of agreement to sale dated 28th May 1990. The second issuewas about payment of earnest money. Further issue shows that, it was inrespect of breach of contract to perform part of contract. Thereafter, theissue was as to whether the defendants therein were bonafide purchaserof the suit land and willingness of the plaintiff to perform their part ofcontract. Whereas in the present suit, there is no issue as regards thespecific performance or the execution of agreement. Though inparagraph No.5 of the plaint in the present suit, there is reference to theagreement to sale, it is only that it was bogus and by obtaining thesignature of the mother of the plaintiff. The cause of action is shown tobe a judgment in Special Civil Suit No. 68 of 2004 when the plaintiffasked for the possession. 10.Considering the judgment in the case of Gupte Cardiac CareCentre and Hospital Vs. Olympic Pharma Care (P) Ltd.2, the Hon’ble2(2004) 6 SCC 756 Ethape( 9 ) WP-13298-2023Apex Court held that, the consideration for exercise of power underSection 10 depends upon the facts and circumstances of the case. It isheld that the object is to avoid the possibility of conflicting decrees andduplication of evidence. This is keeping in view, to save time and energyof the Courts and the parties. On the fact of that case, it was found thatthe later suit was in respect of issue which was directly and substantiallyin issues in the previously instituted in the civil suit. The judgment in thecase of Smt. Padmabai w/o. Bhaurao Patil Vs. Shaikh Shahadulla Sk.Abdulla & Anr.3 This Court in the said judgment had considered thejudgment in the case of Gupte Cardiac Care Centre and Hospital(supra).11.In the case previously instituted suit was for specific performanceof the contract based on sauda pavti. The respondent in that writpetition had filed subsequent suit where the prayer was made forcancellation of the said sauda pavti. In such facts, the Court held thatthe issue is mainly and substantially the same i.e. sauda pavti andtherefore allowed the application under Section 10 to avoid multiplicity32010(6) ALL MR 785 Ethape( 10 ) WP-13298-2023of application. It was held that the order was rightly passed stating thesuit to avoid multiplicity of application. 12.In the case of Maharashtra State Co-operative MarketingFederation Ltd. Vs. Indian Bank Bombay4, the Division Bench of thisCourt held that Section 10 is applicable even to the summary suit filedunder special procedure laid down in Order 37. It is also held that it isno reason to not apply Section 10. This Court finds that the judgmentrelied upon by the petitioner has no applicable in the fact of the presentcase. 13.In the case of Aspi Jal (supra), three suits were filed on differentcauses of action. In view of the fact that, causes of action was different,the Hon’ble Apex Court held that, there has to be same cause of actionand same subject matter and relief also should be the same. It is only insuch cases, Section 10 would have an application. In the case of ShivdasGavhane Vs. Revindra Sudhakar Ghadge passed by this court in WritPetition 12651 of 2016. In this case, second suit was filed on almostsimilar pleadings. It is considered that Section 10 has the application4[1996 (2) Mh.L.J. 925] Ethape( 11 ) WP-13298-2023where case is made out. That if earlier decision would operate as res-judicata in the subsequent suit, in that case, Section 10 needs to beinvoked. 14.Considering all these questions, the judgment in this Court has tosee in the present matter as to whether a case is made out that thefindings recorded in the earlier suit whether would operate as res-judicata. The answer is clearly no. There is no issue decided in SpecialCivil Suit No. 68 of 2004 showing that the same can be said to havebeen directly and substantially involved in the preset suit. This Courtfinds the judgment of this Court in the case of Aspi Jal and Another Vs.Khushroo Rustom Dadyburjor (supra) relied upon by the learnedAdvocate for the respondents is clearly applicable here. 15.Considering all above, this Court find that no case is made out toallow the writ petitions. No interference is called for in the impugnedorder passed by the trial Court. Both the writ petitions deserve to bedismissed. Hence, the following order:-
Decision
Ethape( 12 ) WP-13298-2023 ORDER(i)Both Writ Petitions stand dismissed.(ii)No order as to costs.(iii)Civil Applications, if any, also stand disposed off. [KISHORE C. SANT, J.]1.At this stage, the learned Advocate for the petitioners seekscontinuation of the liberty granted to the petitioners during thependency of writ petitions.2.Mr.Ashtekar, the learned Advocate for the respondent vehementlysubmits that, in fact, there is no any interim relief granted. The libertywas only to mention before the trial Court and to seek adjournment onthat count. No interim relief was, as such, granted by this Court. 3.In view of the same, the learned trial Court shall not pass anyeffective order for three weeks from today.[KISHORE C. SANT, J.]