1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 6021 OF 2004 Narayan Sonu Wani ...Petitioner Versus 1. M/s. Khubchand Sagarmal Partnership Firm 2 Sagarmal Roopchand Malara (Oswal) (Deceased) 3 Shri Chandmal Sagarmal Malara (Deceased) 4 Pukhraj Sagarmal Malara 5 Madan Sagarmal Malara 6 Pukhraj Tyres A registered partnership firm 7 Rajendra Sagarmal Malara 8 Chandmal Sagarmal Malara 9 Vinod Pukhraj Malara ...Respondents ..... Mr. Girish Rane, advocate for the petitioner Mr. S.P. Shah, advocate for respondent Nos.6 and 7. ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 09.09.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 14.09.2009 OF JUDGMENT 2 JUDGMENT:- 1 This writ petition is directed against the judgment and order dated 31.1.1991 passed by the Joint Civil Judge Junior Division, Jalgaon in R.C.S. No. 253 of 1988. 2 Learned counsel for respondent Nos. 6 and 7 has raised preliminary objection for entertaining this petition on the ground that the petitioners have prayed same relief which are already prayed in civil appeal No. 48 of 1999, filed before the District Judge, Jalgaon. Therefore, counsel for the respondents would submit that on this ground alone, this petition is required to be dismissed. 3 Learned counsel appearing for the petitioner was called upon to make his submissions on preliminary objection raised by the counsel appearing for the respondents that the petitioner cannot avail two remedies simultaneously with identical prayer one before this Court and another before the District Judge Jalgaon. Learned counsel for the petitioner has conceded that civil appeal No. 48 of 1991 is filed by the present petitioner he has also conceded this position on the basis of the documents annexed to the petition. 4 After hearing counsel for the petitioner and the counsel appearing for the respondents, I find considerable force in the 3 preliminary objections raised by the counsel appearing for the respondents that the prayers in the present writ petition are almost identical to the prayers in civil appeal No. 48 of 1999. The prayer clause “A” in the present writ petition reads thus:- “A. The Hon’ble High Court may be pleased to quash and set aside the judgment and order dated 31.1.1991 passed by the learned Joint Civil Judge, Junior Division Jalgaon below Exh.51 in Regular Civil Suit No. 253 of 1988.” Whereas the prayer in the civil appeal No. 48 of 1991 reads thus:- “That the order of abatement and dismissal of the suit passed on 31st January 1991 be set aside including order below Exh.51 and suit be restored to the file for hearing by allowing the appeal with costs throughout.” 5 On perusal of the prayers in the writ petition as well as in the civil appeal, as quoted herein above, it is abundantly clear that even in appeal, the petitioner has prayed relief in respect of order below Exh. 51, which is the subject matter even in the present writ petition. Therefore, in my considered view, simultaneously, the petitioner 4 cannot avail two remedies with similar prayers before two different courts. Hence, this writ petition is not maintainable and the same is dismissed. 6 It is made clear that in view of the pendency of the civil appeal before the District Court, Jalgaon with the similar prayer, this petition cannot be entertained under Article 227 of the constitution of India. It is also made clear the dismissal of this petition would not come in the way of the petitioner in the pending civil appeal No. 48 of 1999. 7 In view of disposal of main writ petition, civil application No. 8460 of 2007 does not survive and the same is disposed of accordingly. *****