1307wp2425.11.odt 1 THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.2425 OF 2011. Madhukar Laxman Meshram ..vs.. Smt.Sanghmitra Haridas Barjare and anr. ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr. S.P.Kshirsagar, Adv.for the petitioner. CORAM : R.M.SAVANT, J. DATED : 13th July, 2011. 1. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 1/3/2011 by which the application filed by the petitioner under Order 12 Rule 6 of the C.P.Code came to be rejected. 2. The petitioner is the original defendant no.1 in the suit filed by one Balaji Atmaram Selokar being Spl.Civil Suit No.10 of 2007. The said suit has been filed for Specific Performance of the Agreement dated 8/4/2005, which was entered into between the father of the petitioner and one Balaji Selokar. The respondents no. 1 and 2 herein, who are the sisters of the present petitioner have filed Reg.Civil Suit No.2 of 2008 for partition and possession of the ancestral properties. The above petitioner filed an application under Order 12 Rule 6 of the C.P.C. for dismissal of the said suit in view of the admissions made in the written statement by the respondent nos.1 and 2 herein in the said Spl.Civil Suit No.10 of 1307wp2425.11.odt 2 2007. In the said written statement, the respondents no.1 and 2 herein, who are the respondent nos.2 and 3 in the said suit, have accepted the factum of the execution of the Agreement dated 8/4/2005 by their father and have expressed their readiness and willingness to perform their part of contract on receipt of the balance consideration. The respondent nos.1 and 2 have also accepted that the plaintiff i.e. said Balaji Selokar was always ready and willing to perform the part of the contract. Relying upon the said admissions, it is the contention of the petitioner that the subsequent suit filed by the respondent nos.1 and 2 for partition being Reg.Civil Suit No.2 of 2008 is not maintainable as they have agreed to part with their shares on receipt of the balance consideration. 3. The Trial Court considered the said application and by the impugned order dated 1/3/2011 has rejected the same on the ground that the suit could not be dismissed in the manner sought by the petitioner, as it would entail leading of evidence. 4. Though the Trial Court has rejected the application on the said ground, in my view, till such time Spl.Civil Suit No.10 of 2007 is decreed, may be on the basis of the alleged admissions of the defendant nos.2 and 3 in the written statement, it cannot be said that the right of respondent nos.1 and 2, who are the plaintiffs in the said Reg.Civil Suit No.2 of 2008 to file a suit for partition is denuded. 5. It is also required to be noted that the petitioner in the said Reg.Civil Suit No.2 of 2008 filed an application under Section 10 of the C.P.Code for stay of the said suit. The said application was rejected. The matter had come to this court by way of Writ 1307wp2425.11.odt 3 Petition being No.1480 of 2010 filed by the petitioner which also came to be dismissed. In the light of the above, no case for interference with the impugned order is made out. Writ petition is accordingly dismissed. JUDGE chute