1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. LETTERS PATENT APPEAL No. 286/2011 IN WRIT PETITION No. 346/2011. Mangesh Vijay Kashikar -VERSUS- Nishikant Raghunath Pantawane _______________________________________________________________________ Office Notes, Office Memoramda of Coram, appearances, Court's orders of directions Court's or Judge's orders. and Registrar's Orders. ______________________________________________________________________________ CORAM : B.P.DHARMADHIKARI & P.D. KODE, JJ. DATED : AUGUST 09, 2011. Heard Shri V.V. Bhangde, learned Counsel for appellant and Shri A.R. Kalariya, learned counsel for respondent. Admit. By consent of parties appeal is heard forthwith. Appellant has filed this appeal under Clause 15 of the Letters Patent, challenging the judgment of learned Single Judge dated 10.06.2011 2 delivered in Writ Petition No. 346/2011. The maintainability of the Letters Patent Appeal is not in dispute between the parties. Shri Bhangde, learned Counsel contends that in a suit filed by a third person (Shri Pande) vide Special Civil Suit No. 720/2008, present appellant is party, while present respondent is not concerned therewith. Present respondent is tenant of predecessor in title of appellant namely Shri Martand, and Shri Martand has not disputed sale deed in favour of present appellant. As after purchase respondent has became tenant of present appellant, appellant has filed Civil Suit No. 785/2009 for their eviction. In that suit, title of the present appellant has been questioned and an application under Section 10 of the Code of Civil Procedure came to be filed. That application was granted and petition under Article 226 and 227 of the Constitution of India filed against it has been dismissed. By placing reliance upon the judgment of Hon'ble Apex Court reported at 2005 [2] SCC 256 (National Institute of Mental Health and Neuro Sciences .vrs. C.P. Jarameshweara), it is urged that 3 subject matter of both the suits, as also parties thereto are different and hence Section 10 has no application. Shri A.R. Kalraiya, learned counsel appearing for respondent has supported the impugned order. According to him, if the suit filed against the present respondent is decreed and earlier suit filed against present appellant is also decreed, an inconsistent situation comes into play/picture. He therefore, states that the application of mind by the learned Single Judge is in accordance with law. The present appellant in Civil Suit No. 785/2009 has to show that present respondent is his tenant. The title of the suit property is, therefore, not that way in dispute in the said suit. The vendor of the present appellant namely Shri Martand has not disputed the sale deed executed by him in favour of present appellant and respondent has accepted that he is tenant of Shri Martand. In view of this position, it is apparent that subject matter of Civil Suit No. 785/2009 and Special Civil Suit No. 720/2008 is entirely different. The provisions of Section 10, therefore, cannot be extended 4 to such two different suits. Not only the subject matter, but parties thereto are also different. In this situation, it is apparent that the application under Section 10 of the Code of Civil Procedure as filed is misconceived. The appeal is, therefore, allowed. Application under Section 10 of the Code of Civil Procedure is rejected. No costs. JUDGE JUDGE Rgd