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 nonuser,
were identified and based on each
period of nonuser,
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.
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.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9382 OF 2013
Dnyanoba Balbhim Salunke Vs Sarjerao Dhondiba Salunke
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 12/03/2014
Citation;2015(1)ALLMR367
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
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
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
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
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 nonuser,
were identified and based on each
period of nonuser,
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.
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.)
Print Page
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 nonuser,
were identified and based on each
period of nonuser,
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.
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.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9382 OF 2013
Dnyanoba Balbhim Salunke Vs Sarjerao Dhondiba Salunke
(CORAM : RAVINDRA V.GHUGE, J.)
DATE : 12/03/2014
Citation;2015(1)ALLMR367
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
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
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
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
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 nonuser,
were identified and based on each
period of nonuser,
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.
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.)
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