1 W.P.No.9366/11 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO.9366 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Mr.B.S.Kudale, advocate for the petitioner. Mr.P.B.Paithankar, advocate for the Respondent No.1. CORAM : S.V.GANGAPURWALA,J. Date : 08.12.2011. PER COURT : 1. Heard. 2. The present petitioner had initially filed RCS No.89/2004 (New No.RCS No.219/2008) for the relief of specific performance and permanent injunction. Earlier to the said suit, the present petitioner has filed RCS No.523/2002 (New No.RCS No.178/2008) for simpliciter injunction. The suit bearing RCS No.89/2004 was decided. The suit came to be dismissed. Against that the present petitioner has filed a Regular Appeal and the same is pending. The present petitioner filed an application Exh.91 in RCS No.178/2008 U/s 10 of the C.P.C. for stay of the proceedings as the appeal is pending as against the decree passed in RCS No.219/2008. The said application is rejected. Aggrieved thereby, the present petition 2 W.P.No.9366/11 is filed. 3. Mr.Kudale, learned counsel for the petitioner submits that the decision in appeal pending before the District Court would be material for the adjudication of suit RCS No.178/2008. The issue in the said suit is directly and substantially in issue in the present suit. According to the learned counsel if the present suit is allowed to be decided inspite of pending appeal between the same parties and the same subject matter then there is possibility of conflicting findings. Even this Court in W.P.No.5553/2006, vide order dated 11.4.2008, had directed disposal of both the suits. In fact, both the suits could have been decided together. However, RCS No. 219/208 was decided earlier. In view of that, the present suit RCS No.178/2008 deserves to be stayed. 4. Mr.Paithankar, learned counsel for the Respondent supports the order and submits that there is no propriety in staying the present suit. In fact, the earlier suit is for relief of specific performance. In fact, the suit which is decided i.e. RCS No. 219/2008 is for the relief of specific performance with the relief of injunction and the present suit is only for simpliciter injunction. In fact, the subsequent suit was not maintainable. 5. With the assistance of the learned counsel, I have gone through the pleadings and both the suits. Section 10 of the C.P.C. envisages stay of a subsequent suit if the issue in two suits are 3 W.P.No.9366/11 substantially the same. In the present case, the suit bearing RCS No.178/2008 which is pending is instituted prior in point of time to the suit bearing RCS No.219/2008. As such strictly speaking Section 10 of the C.P.C. would be inapplicable. Moreover, in suit RCS No.219/2008, the relief which is substantially in issue is of a specific performance and relief of injunction is merely a consequential relief. 6. In light of the above, no error has been committed by the Court while passing the impugned order. No case for interference is made out in the Writ jurisdiction of this Court under Article 227 of the Constitution of India. 7. The Writ Petition is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.08.12.2011. asp/office/wp9366.11 4 W.P.No.9366/11