Writ Petition No.6298 of 2008

16th September, 2009

Petitioner Counsel: Mr. M. M. BHOKARIKAR
Respondent Counsel: Mr. S. S. KAZI

Cases Cited:
Sairabai Sayyad Abdul Aziz (deceased through her L.Rs.) Vs. Abdul Rashid Abdul Majid, 2002(3) Bom.C.R. 139 [Para 4]
M/s. Gupte Cardiac Care Center and Hospital Vs. Olympic Pharma Care Pvt. Ltd., AIR 2004 SC 2339 [Para 4]
M/s. Chitivalasa Jute Mills Vs. M/s. Jaypee Rewa Cement, AIR 2004 SC 1687 [Para 4]
Maharashtra State Co-operative Marketing Federation Ltd. Vs. Indian Bank, Bombay, AIR 1997 Bom 186 [Para 5]
Gregorio Pereira (deceased) through L.Rs. Vs. Damazio Bento Pereira, 2004(3) ALL MR 520 [Para 5]

JUDGMENT

JUDGMENT:- Rule. Rule made returnable forthwith. Petition is taken up for hearing immediately.

2. This writ petition is challenging the order passed by the learned C.J.J.D. Raver dated 20.6.2008 below Exh.41 in R.C.S. No.92 of 2007.

3. The background facts of the case are as under:-

The petitioner is owner and possessor of the agricultural land bearing Gat No.18/2 admeasuring 2 Hectare and 72 Are and Potkharaba 26 Are. Thus, the total area admeasures 2 Hectare 98 Are, situated at village Raslapur, Tq. Raver, District Jalgaon. The mother of the petitioner filed said civil suit on 23.10.2007 before the learned C.J.J.D. Raver.

The petitioner's mother died after filing of the suit. Hence, her name from the suit is deleted and the petitioner's name came to be brought on record in the suit as L.Rs. of original plaintiff. It is the further case of the petitioner that the land in question is covered under limitations as well as the under the provisions of Section 43 of the Bombay Tenancy and Agricultural Lands Act 1948 and nobody can enter in agreement contrary to the provisions of the said Act and till the date neither the petitioner has entered in agreement with anybody including the respondents in this petition nor there was agreement in the past by the petitioner or her mother. The petitioner is in possession of the suit property. She is cultivating the suit land personally and taking income from the same. Even prior to the death of her mother, both were cultivating the said land personally and enjoying the suit property.

It is further case of the petitioner that there is no source of water for the suit land and hence Shri. Mohammad Shafi Mohd. Iqbal, owner of Gat No.74 used to give water from his well through pipeline to the suit land on certain conditions from the petitioner as agreed from time to time. Hence, the petitioner can cultivate the crops only when the water facility is available.

The R.C.S. No.71 of 1996 filed before the Civil Court Raver by Shri. Ashok Bajirao and Shri. Prakash Bajirao Chaudhari, the nephews of Late Rajaram Omkar Chaudhari with intent to get the share in the suit property on the basis of false bequeath of late Rajaram. The petitioner and her mother late Nababai had also filed Civil Suit against Shri. Ashok and Prakash Bajirao Chaudhari bearing R.C.S. No.76 of 1994 in the Civil Court, Raver. It is further case of the petitioner that her mother had borrowed a sum of '20,000/- in the year 1996 from the respondent's father Shaikh Abdulla Sk. Lal and the same amount was agreed to be returned after receiving the crops from the field. There was a stamp paper prepared by the respondent's father and he might have obtained the thumb impression of the petitioner's mother. According to the petitioner, the amount was returned to the respondents' father in October, 1997, however, the stamp paper was not returned to her by the respondents' father and therefore, the said stamp paper is false and bogus. The stamp papers was used by the respondents to prepare agreement to sale of the suit land and on the basis of such bogus stamp paper, issued for preparation of the forged and fabricated documents, the respondent filed Special Civil Suit No.191 of 2007 in the Court of learned C.J.S.D. Jalgaon against the petitioner and her mother for specific performance of contract.

It is the case of the petitioner that she got knowledge of filing of the said suit when she received summons. The respondents have filed an application for interim injunction against the present petitioner and prayed therein against the transfer of the suit property by the petitioners. The petitioners filed written statement in the said suit. The petitioners and her mother filed R.C.S. No. 92 of 2007 in the Court of learned C.J.J.D. Raver on 23.1.2007 to protect the possession of the petitioner from obstructions to the suit property from the respondents. The respondents filed written statement on 17.7.2007 in the said suit.

The petitioner herein preferred an application in the Court of learned C.J.J.D. Raver in R.C.S. No. 92 of 2007 for interim order under Order 39, Rule 1 and 2 of C.P.C. to protect her possession from the respondents, since she is in possession of the suit property since beginning. The said application was rejected by the learned C.J.J.D. Raver and against the said order there is appeal preferred before the District Court, Jalgaon.

The respondent herein filed an application under Exh.41 on 4.3.2008 in R.C.S. No. 92 of 2007 under Section 10 of the C.P.C. to stay the said suit as that is filed subsequently filing of the Special Civil Suit by the respondents. After hearing the petitioner as well as the respondents, the trial court allowed the application at Exh.41 and stayed the suit filed by the petitioners. Hence, this writ petition.

4. Learned counsel appearing for the petitioner invited my attention to the prayers in the Special Civil Suit 191 of 2007 filed by the respondents herein and the prayers made in R.C.S. No.92 of 2007 and submitted that if the prayers in both the suits are compared, the prayers are different. The prayers in the suit filed by the present petitioner are for permanent injunction against the respondents, however, in prayers clause in suit filed by the respondents are for execution of specific performance of suit property therefore, learned counsel would submit that when there are different prayers in the suit and issues in both the suits are contradictory, the trial court was not justified in staying the suit filed by the petitioner. Learned counsel further submitted that the civil suit filed by the present petitioner is pending before the C.J.J.D. Raver and Special Civil Suit No.191 of 2007 is pending before the learned C.J.S.D. Jalgaon, therefore, learned counsel would submit that the court is not competent to club both the suits and therefore, the court has stayed the said suit and this court under Section 151 of the C.P.C. can transfer the suit pending before the learned C.J.J.D. Raver and it can be clubbed with Special Civil Suit No. 191 of 2007, which is pending before the learned C.J.S.D. Jalgaon. Learned counsel further submitted that if both the suits are clubbed and heard together, that will not cause any prejudice to the respondents. Learned counsel invited my attention to the reported judgment of this Court in the case of Sairabai Sayyad Abdul Aziz (deceased through her L.Rs.) and others Vs. Abdul Rashid Abdul Majid, reported in 2002(3) Bom.C.R. 139 and submitted that the ratio laid down in the said judgment is squarely applicable to the facts of this case. Learned counsel further invited my attention to the reported judgment of the Supreme Court in the case of M/s. Gupte Cardiac Care Center and Hospital Vs. Olympic Pharma Care Pvt. Ltd. Reported in AIR 2004 SC 2339 and in the case of M/s. Chitivalasa Jute Mills Vs. M/s. Jaypee Rewa Cement, reported in AIR 2004 SC 1687 and submitted that in the interest of justice, this court may transfer the suit pending before the learned C.J.J.D. Raver, filed by the petitioner to the court of learned C.J.S.D. Jalgaon and both suits can be heard together. Therefore, learned counsel in the first instance submitted that since the prayer in both the suits are different, the impugned order should not have been passed by the trial court staying the suit filed by the petitioner and in the alternative he submitted that in case this court feels that both the suits can be heard together then the suit filed by the petitioner may be clubbed with the suit filed by the respondents and same may be heard together. Therefore, learned counsel submitted that this writ petition deserves to be allowed.

5. Learned counsel appearing for the respondents invited my attention to the pleading in the R.C.S. No.92 of 2007 filed by the petitioner and more particularly para 2 of the said suit and submitted that the pleadings of the petitioner herein in the said suit are that the issues involved in both the suits are similar and the prayers are also identical. Therefore, learned counsel would submit that the petitioner cannot take two different stands one in the plaint and another before this Court stating that the issues involved in the suit filed by the petitioner and prayers are different in the suit filed by the respondents. Learned counsel therefore, submitted that the party which is approaching with different stand before different court, is not competent to invoke jurisdiction and equitable relief under the supervisory jurisdiction under Article 227 of the Constitution of India and therefore, on this ground alone, writ petition is required to be dismissed. Learned counsel further submitted that this court in the case of Maharashtra State Co-operative Marketing Federation Ltd. Vs. Indian Bank, Bombay, reported in AIR 1997 Bombay 186 and in the case of Gregorio Pereira (deceased) through L.Rs. And Anr. Vs. Damazio Bento Pereira and Ors. Reported in 2004(3) ALL MR 520, has interpreted the provisions of Section 10 and has taken a view that Section 10 mandates the Court not to proceed with the trial of any suit in which the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties. The provisions of stay in this Section are mandatory. The object of this section is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. Therefore, learned counsel would submit that the writ petition is devoid of any merits and the same deserves to be dismissed.

6. After hearing learned counsel for the petitioner and the learned counsel for the respondents and after perusal of the impugned order passed by the trial court and after perusal of the pleading and grounds in the petition and annexures thereof. I am of the considered view that the parties to both the suits are same and subject matter involved in the suits is also same. The petitioner herein has taken a stand in the plaint of civil suit No.92 of 2007 filed before the trial court that the issues involved in the suit filed by the petitioner are similar and also prayers are also identical cannot be allowed to change the stand in the writ petition. Though learned counsel for the petitioner has invited my attention to the prayers in the suit filed by the petitioner, it appears that the prayer "A" in the said suit has been subsequently deleted, which was almost similar to that of the prayers in the suit filed by the respondent. Though the learned counsel for the petitioner has contended that the suit filed by the petitioner is only for permanent injunction against the respondents, from the pleadings of the said suit it clearly emerges that the subject matter of the suit or issues and property involved in both the suits, is similar and parties are also same. The learned counsel for the respondents has rightly placed reliance on the reported judgment of this Court and the provisions of Section 10 to contend that the suit filed by the present respondents herein is instituted earlier to that of the suit filed by the present petitioner. It is also not in dispute that the suit filed by the respondents is filed before the suit filed by the petitioner. On plain reading of Section 10 and on perusal of the judgments of this Court cited supra, the impugned order does not required any interference.

7. The trial court in para 4 has observed that the suit filed by the defendants i.e. Special Civil Suit No.191 of 2007 for specific performance is relating to suit property relying on Sauda pavti. The defendants/present respondents have prayed for executing the sale deed in their favour by the court and in the suit filed by the petitioner who is original plaintiff, she has claimed cancellation of said Sauda pavti. Thus, the Sauda pavti is the main subject matter in both the suits and if the suit filed by the petitioner is allowed to be continued then definitely possibility of conflicting decisions cannot be ruled out. In such circumstances, to avoid multiplicity of the litigation, it is necessary to stay the suit which is filed subsequently by the petitioner. Therefore, what follows from para 4 of the impugned order is that the subject matter of both the suits is same. Though the learned counsel tried to contend that the prayer in the suit filed by the plaintiff is totally different, it appears that though the prayer clause "A" was there earlier, the same has been deleted afterwards.

On going through the pleadings in the suit filed by the petitioner, the petitioner herself has stated that the subject matter of both the suits is same and both the parties are asking similar relief, therefore, I find that the trial court has taken possible view and therefore, I do not see any infirmity or perversity in the findings recorded by the trial court. No interference is called for in extra ordinary jurisdiction of this Court under Article 227 of the Constitution of India. Hence, writ petition is dismissed. Rule discharged. Interim relief, if any, stands vacated. Civil application, if any, stands disposed of. There shall be no order as to costs.

Petition dismissed.