: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 91 OF 2009 IN NOTICE OF MOTION NO. 3230 OF 2008 IN SUIT NO. 2505 OF 1988 1. Mahendra Chunilal Mehta & anr. ... Appellant Vs 1. Rajendra Chunilal Mehta & 14 ors. ... Respondents Mr. D.A. Joseph i/b A.G. Shah for the appellants. Mr. Prasad Rao for the respondent No.1. CORAM: S.B. MHASE & A.A. SAYED, JJ. DATED : 17TH JULY, 2009. P.C.: 1. Heard both sides. 2. This Appeal arises from the order passed in Notice of Motion No.3230 of 2008 in Suit No. 2502 of 1988 along with the Judges’ Order No.256 of 2008 in Suit No.2502 of 1988. By this Notice of Motion, the defendant/appellant has prayed for a direction with regard to SC Suit No.4561 of 1988 filed by the respondent/plaintiff against the defendants and others. The defendant/appellant has also prayed that pending the hearing : 2 : and final disposal of the suit all further hearing in the SC Suit No.4561 of 1988 intended to be proceeded with by the City Civil Court at the instance of the plaintiff be stayed. Alternatively, the defendant/appellant has prayed for stay of the said suit pending before the City Civil Court. 3. On 16th September, 2008, the learned single Judge of this Court has passed the impugned order by which the Notice of Motion has been rejected. It is interesting to note that both the Suits have been filed by Rajendra Chunilal Mehta and Mrs. Mangala Rajendra Mehta. SC Suit bearing No. 4561 of 1988 is the City Civil Court suit which has been filed first in point of time whereas the suit filed before this Court bearing No. 2502 of 1988 has been subsequently filed. It is further to be noted that the parties, and specially defendants in both the suits, are quite different. In the suit before the City Civil Court there are only three defendants whereas in the suit before this Court, there are nine defendants. In the Suit filed before the City Civil Court, the relief claimed is in respect of the company viz. Chunilal Mehta Estates Private Limited and the relief claimed is in respect of the Chairmanship and certain Resolutions passed in the meetings of the said company. The reliefs which have been claimed in the suit before this court are declarations in respect of the properties in the Schedule claiming that those properties are self-acquired properties of the plaintiff/respondent. Though the Plaint contains a statement that the plaintiff will take steps to transfer the suit from the City Civil Court to this court, such an application was never made by the plaintiff. After a period of 17 years, the defendant made such an application being Misc. Application No.52/05 and that application was rejected by a learned single Judge of this court on 18th July, 2005. In the said order, it has been observed that it will be possible for the applicant/defendant to : 3 : apply for transfer of the present suit to the City Civil Court, but ultimately the learned single Judge has refused to transfer the suit filed before the City Civil Court to this Court. That order has been passed relying upon the decision of the Supreme Court in the matter of Jamshed N. Guzdar v. State of Maharashtra reported in 2005(2) SCC 591. This order of the learned single Judge was challenged by the defendant/appellant before the Division Bench and the Division Bench refused to entertain the Appeal. Thus, this order has attained finality so far as this court is concerned. However, thereafter it was not taken to the Supreme Court by the defendant/ appellant. Thereafter, Notice of Motion No.3230 of 2008 was moved from which the present Appeal arises. The learned single Judge has observed that since the prayer for transfer has already been rejected, prayer (a) in the Notice of Motion cannot be granted and we find that the said observation of the learned single Judge is just and proper. 4. Prima facie, what we find is that the subject matter of both the suits is different, but our attention has been invited by the counsel for the appellant to paragraph 25 of the Plaint filed in this court and the learned counsel submitted that the reliefs claimed to that effect and the pleadings to that effect in both the suits are one and the same. However, this aspect has not been considered by the single Judge while rejecting the Notice of Motion. One of the responsibility on this court is to find out that there should not be a multiplicity of findings in respect of the common pleadings in both the suits. Therefore, it will be appropriate for this court to scrutinize whether paragraph 25 of the Plaint in this court and the reliefs claimed in the City Civil Court are one and the same and if, to that extent, there is a commonality in order to avoid further complications and multiple decisions in respect of the same issue, it will be appropriate to stay the suit based on : 4 : paragraph 25 and the reliefs claimed on the basis of the pleadings in paragraph 25 so far as this court is concerned by invoking powers under section 10 of the Code of Civil Procedure. This aspect, however, has not been considered by the learned single Judge. No doubt, transfer has been refused, but since the suits have been filed in two different courts and if the parties are common and the reliefs claimed are common, then the matter requires scrutiny from that angle. However, this point was neither argued by the learned counsel before the learned single Judge nor the learned single Judge has considered this aspect while disposing of the Notice of Motion No.3230 of 2008. Therefore, to that extent so far as non-transfer of the suits are concerned, we confirm the order passed by the learned single Judge, but we request the learned single Judge to consider the matter from the point of section 10 of the Code of Civil Procedure to the extent of the dispute covered by the City Civil Court and the dispute pending in this court. If the single Judge finds that there is a commonality in the cause of action pending before the City Civil Court and paragraph 25 of the present Plaint, then the learned single Judge may consider whether to invoke powers under section 10 of the Code of Civil Procedure and stay the subsequent suit to the extent of the commonality in both the suits. One thing is clear that since both the suits involve different subject matters, it is not necessary to stay the entire suit in this court. If at all the suit pending before this court is required to be stayed under section 10, it will be required to be stayed only to the extent of the commonality in the suit before the City Civil Court and nothing more. We would like to make one more thing clear and that is that the suit before the City Civil Court has to be proceeded with and it cannot be stayed because it has been filed first in point of time and issues have already been framed. : 5 : 5. Therefore, the Notice of Motion is remitted back to the learned single Judge of this court only to the extent of the observations made by us in the above paragraphs and to that extent the matter needs to be considered. Rest of the order passed by the learned single Judge is confirmed. The Appeal is partly allowed to consider the point under section 10 qua both the suits to the extent of the commonality in the cause of action involved in both the suits. This is required to be done in order to avoid multiple findings on the same point by both the courts. The parties are directed to produce the Plaints in both the suits before the learned single Judge for the purpose of scrutiny by the learned single Judge. 6. The Notice of Motion is expedited and we hope that after the matter appears before the learned single Judge, the same shall be disposed of as expeditiously as possible and preferably within a period of one month. The parties are also directed to cooperate with the learned single Judge for speedy disposal of the matter. Sd/- Sd/- (A.A. SAYED) (S.B. MHASE, J.)