1006wp346.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO.346 OF 2011 Mangesh Vijay Kashikar ..vs.. Nishikant Raghunath Pantawane ............................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ............................................................................................................................................................... Mr. V.V.Bhangde Adv. for the petitioner. Mr.M.S.Wakil, Adv. for the respondent. CORAM : R.M.SAVANT, J. DATED : 10th June, 2011. 1. The above petition filed under Articles 226 and 227 of the Constitution of India takes exception to the order dated 6/10/2010, passed by the learned 2nd Jt.Civil Judge (Sr.Dn.), Nagpur, by which the application filed by the respondent herein numbered as Exh.5 under Section 10 of the C.P.Code for staying the said suit came to be allowed. 2. The petitioner herein is the original plaintiff in Special Civil Suit No.785 of 2009, who has filed the said suit for declaring him as a owner in respect of the suit property and for eviction of the respondent herein. The suit property is premises admeasuring 288.15 sq.ft. in the building known as Municipal Corporation House No.1085, Sheet No.53, City Survey No.1855, Ward No.72, Tq. and Distt.Nagpur. The petitioner/plaintiff claims to have purchased the said property from one Maya Martandrao Nandedkar and four others, who were the heirs of late Martandrao Ramchandrarao Nandedkar by registered sale-deed dated 8/4/2008. 3. In the context of the application filed under Section 10 of 1006wp346.11.odt 2 C.P.C., it is required to be noted that Spl.Civil Suit No.720 of 2008 has been filed by one Smt.Malati Madhav Pande and Shri Vijay Madhav Pande, who had purchased the first and second floors in the same house property from the same vendors by registered sale-deed dated 9/6/1989. The said suit has been filed by the said plaintiffs seeking a declaration that the sale-deed in favour of the petitioner herein i.e. dated 8/4/2008 is null and void in view of the fact that the said plaintiffs had the first right of purchase in respect of the sale of any premises in the suit house property in terms of their sale deed dated 9/6/1989. Further relief sought by the plaintiffs in the said suit is to direct the defendants nos.1 to 5 therein i.e. vendors of the petitioner herein, to execute sale-deed in their favour. 4. The cause of action for the present petitioner to file Spl.Civil Suit No.785 of 2009 was the denial of his right as owner by the respondent herein. As is seen, the plaintiffs in Spl.C.S.No.720 of 2008 are asserting their right of pre-emption in respect of the sale of property purchased by the petitioner herein from the defendants in the said suit and has therefore challenged the sale deed dated 8/4/2008 which is in favour of the petitioner. It is also required to be noted that the petitioner has also been added as party- defendant to the said Spl. Civil Suit No. 720 of 2008 filed by Malti Madhav Pande and Vijay Madhav Pande. The Trial Court was, therefore, of the view that the subsequent suit i.e the suit filed by the petitioner also nowwould have to be stayed pending the decision in the said earlier suit No.720 of 2008. 5. On behalf of the petitioner, the learned counsel contended that in so far as the facts of the said two suits are concerned, they do not fall within the parameters of Section 10 of the C.P.Code as firstly; the parties are different, secondly; the cause of action for filing the said two suits are also different, and thirdly; the matter in issue in both the suit is 1006wp346.11.odt 3 substantially different. The learned counsel in support of the said submission relied upon the judgments of the Apex court reported in (2005)2 SCC 256 in the matter of National Institute of Mental Helth and Neuro Sciences ..vs.. C.P.Jarameshweara and 1996(4) SCC 748 in the matter of British Indian Corporation Ltd. ..vs.. Rashtraco Freight Carriers which contain the exposition of the Apex Court in so far as section 10 of the C.P.Code is concerned. The learned counsel further contended that ultimately even if the plaintiffs in the earlier filed Spl.Civil Suit No.720 of 2008 succeed, they would be entitled to prosecute the Spl.C.S.No.785 of 2009 filed by the petitioner and carry to its logical conclusion. 6. Per contra, it is submitted by the learned counsel appearing for the Respondent that the impugned order does not call for any interference at the hands of this Court. 7. In my view, the submissions of the learned counsel for the petitioner cannot be countenanced for the following reasons. It is required to be noted that the registered sale-deed in favour of the present petitioner is in question in the said earlier Spl.Civil Suit No.720 of 2008. The plaintiffs therein have questioned it on the ground that they have a right of pre-emption in respect of the sale of any property in the said municipal house, which is a covenant contained in their sale-deed dated 9/6/1989. The cause of action for the present petitioner to file the subsequent Civil Suit No.785 of 2009 was that the tenant sitting on the property has questioned his ownership. Therefore, the document in question on which the petitioner relies is also incidentally an issue in the suit filed by the petitioner i.e. Spl.Civil Suit No.785 of 2009. It is also required to be borne in mind that in the event the said Spl.Civil Suit No.785 of 2009, which will be tried by a court of concurrent jurisdiction, is decided prior in point of time to the earlier 1006wp346.11.odt 4 Spl.Suit No.720 of 2008, it may give rise to unnecessary complications as regards title as it would be a decree passed by a court having concurrent jurisdiction. In so far as the judgments of the Apex Court cited by the learned counsel for the petitioner are concerned, in my view, the fact situation in those cases stand apart from the fact situation in the present case. In the first case i.e. National Institute of Mental Health and Neuro Sciences (supra), the Apex court has observed that the suit filed before the Civil Court and the application filed before the Labour Court, both proceedings having entirely distinct cause of action, Section 10 would not be applicable. In so far as the second judgment is concerned, the Apex court, on consideration of the causes of action, which had given rise to the two suits therein, had come to the conclusion that the cause of action being entirely distinct and separate, Section 10 of the Civil Procedure Code was not attracted. 8. In the instant case, as mentioned herein above the document on which the petitioner herein relies i.e. the registered sale-deed in his favour is questioned in the earlier filed Spl. Civil Suit No.720 of 2008, and the same document is relied upon by the petitioner relies in the suit filed by him being Spl.C.S.No.785 of 2009 and therefore in the event the suit filed by the petitioner is decided earlier it would unnecessarily complicate the whole issue. The legality of the sale deed is therefore an issue which is overlapping in both the suits. In that view of the matter, no case for interference is made out. The writ petition is accordingly dismissed. JUDGE chute