VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Misc. Civil Application No. 63 OF 2008 Mrs. Medhavini Vijay Borawke through LRs. Applicant Vs. Ramkrishna Janardan Karandikar Respondent through LRs. Mr. Damle i/b Sanjay S. Gawde, for the Applicant. Mr. Girish Godbole with P. M. Arjunwadkar, for the Respondents. CORAM : A. A. KUMBHAKONI, J. DATE : SEPTEMBER 2, 2008. PC :- 1. This is an application under section 24 of the Code of Civil Procedure, seeking the transfer of first appeals which are pending before the learned Additional District Judge, Palghar, for being tried along with two first appeals that are pending in this Court. admitted facts with minimum details which will enable to better understand this order in this regard are set out hereunder. 2. The parties to this application are releated - 2 - to each other. The relief being irrelevant for the purpose of this Civil Aplication. The dispute between the parties is about certain properties. All these properties are suit properties in Special Civil Suit No. 773 of 1996, filed seeking partition and compensation. Another suit being Special Civil Suit No. 593 of 1996 filed seeking declaration in respect of a will which covers some of the properties, forming subject matter of the aforesaid properties in the suit. The other two Special Civil Suit No. 593/96 and 773 of 1996 have been filed in respect of two seperate rooms, which are part of larger premises, that are subject matter of the partition suit. 3. Admittedly, in all these suits, evidence was seperately recorded by the trial Court, but all the four suits have been disposed of by a common judgment. The partition suit and the declaration suit have been dismissed, whereas other two suits filed in respect of the two seperate rooms, seeking possession on title, addressing the defendants therein as gratutious licensees in occupation of these respective rooms, have been decreed. 4. Depending upon the valuation of these four - 3 - suits, two first appeals have been filed in this Court and two first appeals have been filed in the District Court. The particulars of these suits and appeals are as under- Suit Suit Suit No. No. No. Appeal Appeal Appeal 1) Old Spl. Civil Suit First Appeal St. No. No. 14/1992. New Spl. 13986/2006, pending Civil Suit No. 773/96. in High Court. 2) Old. Spl. Civil Suit First Appeal St. No. No.163/96. New Spl. 13987/2006 in High Civil Suit No. 593/96. Court. 3) Old Spl. Civil Suit Civil Appeal No. 39 No. 73/92. New Spl. /2006 in the Court of Civil Suit No.193/96. ADJ, Palghar. 4) Old Spl. Civil Suit Civil Appeal No. 40 No.71/92. New Spl. of 2006 in the Court Civil Suit No.774/96. of ADJ, Palghar. 5. The learned counsel appearing on behalf of the applicant submits that common issues are incolved in all the four aforesaid appeals, in much as the claims in the latter two suits are depending on the finding as to whether the two rooms involved in those suits are in fact joint family properties, or whether the occupants of two rooms have a share therein. It is contended by the defendants in those suits that they are in occupation of the rooms, not as gratutious licensee, but as co-owners, whereas the plaintiffs in both the suits claimed that both these rooms are their self acquired properties. In this background, it is - 4 - contended by the learned counsel for the applicant that identical issues are involved in the partition suit where the issues of ownership as to the two rooms also is going to be decided by this Court in the first appeals, that are pending in this Court. He therefore, expressed an apprehension that if the appeals pending in the District Court are seperately tried there is likelihood of conflict of decisions about the same properties. In his submission therefore, to avoid this conflict the appeals which are pending before the District Court at Palghar be transferred to this Court and the same be heard and disposed of alongwith two appeals pending in this Court. 6. The learned counsel on behalf of the respondent opposed the application on the ground that the parties in all these suits are different and that seperate evidence was recorded in all the four suits, and therefore, only because all the four suits have been disposed of by common judgment, the request of the applicant cannot be allowed. It is further contended that none of the grounds crystalised by the Apex Court by its judgment delivered in the case of- (1) M/s. Engineering Investments P.Ltd. Vs. M/s. M/s. Engineering Investments P.Ltd. Vs. M/s. M/s. Engineering Investments P.Ltd. Vs. M/s. - 5 - Bharat Bharat Bharat Heavy Electricals Ltd., Madras and another Heavy Electricals Ltd., Madras and another Heavy Electricals Ltd., Madras and another reported in AIR 1983 Madras 1 AIR 1983 Madras 1 AIR 1983 Madras 1, AND (2) Kulwinder Kaur Kulwinder Kaur Kulwinder Kaur Vs. Vs. Vs. Kandi Friends Education Trust and Ors. Kandi Friends Education Trust and Ors. Kandi Friends Education Trust and Ors. reported in (2008) 3 Supreme Court Cases 659, (2008) 3 Supreme Court Cases 659, (2008) 3 Supreme Court Cases 659, are satisfied in the present case, warranting an order of transfer. 7. In as much as the apprehension expressed by the learned counsel appearing on behalf of the applicant that there will be conflicting decisions rendered by the two Courts, if this application is not allowed, in my view, is without any substance. There certainly will not be a conflicting of decision of two Court with same or concurrent jurisdiction. 8. The first appeals which are pending in this Court are not likely to be heard for quite some time. Pending these first appeals in this Court in all probabilities, the appeals pending in the District Court will be heard and disposed of on their own merits. The decision that will be rendered by the District Court obviously will be subject to further appeals, to be preferred in this Court as and by way of Second Appeals. Such Second Appeals as and when will be filed, in my view, can be considered and disposed of along with the First Appeals, that are - 6 - presently pending with this Court. 9. Therefore, in my view, there is no need to either keep the Appeals pending in the District Court till the appeals are heard by this Court or transferof these Appeals to this Court. . Even otherwise if the District Court Appeals are transferred to this Court, there is likelihood of parties losing a chance of one more appeal. Though this may not be a sole ground for refusing to transfer these appeals, certainly that will be a relevant consideration. If the course, as aforesaid, is adopted, none of the parties are likely to suffer any prejudice. 8. I do not find any substance in the contention of the learned counsel for the respondent that as parties to all these proceedings are not identical, the Appeals pending before the District Court may not be transferred to this Court. In the nature of disputes involved in all the four matters, the parties are bound to be different in each case. It is not at all necessary to transfer the matter from one Court to another, that all parties in all the matters should be - 7 - identical. 9. However, taking into consideration over all facts and circumstances of the case, in the interest of justice, it is not necessary to transfer the two appeals which are pending with the District Court to this Court, as sought for by the present Application. In case if the appeals pending before the District Court are decided first (in all probabilities that is bound to happen) and in case the Second appeals are filed in this Court, parties to this Application are at liberty to take out appropriate proceedings at that stage for hearing of such Second Appeals with First Appeals, that pending in this Court. Sd/- [ A. A. KUMBHAKONI, J.]