1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2479 OF 2009 Sau.Chandrakala Ramesh Khabiya PETITIONER VERSUS Sarangdhar S/o.Murlidhar Bajaj and others RESPONDENTS Mr.S.D.Hiwarekar, advocate for petitioner (CORAM : A.V.POTDAR, J.) DATE : 08/06/2009 PER COURT : 1. By the present writ petition, the writ petitioner is challenging the order passed on Exh.44 which is not mentioned either in the prayer clause nor in the title. The Spl.C.S.No.8/2006 was filed by the present respondent no.1 against the present respondent no.2 and 3 for the specific performance of land old survey no.349, new survey no.206, situated at Mazalgaon, Tal.Mazalgaon, Dist : Beed. According to the petitioner, the property which is the subject matter of the agreement of sale for which specific performance is asked for is ancestral property and without implementing them as a party to the suit, the parties are settling the issue in the suit, hence applied to join as a necessary party under Order 1 Rule 10 CPC. This application came to be rejected by the Trial Court of which order is under challenge. With the assistance of the learned advocate 2 appearing for the petitioner, I have gone through the order under challenge, which is passed below Exh.44. It is observed by the learned Trial Court that already the suit for partition and separate possession is filed by the present petitioner against the respondent no.2 and 3, her sisters and mother, which is a substantive suit in which the rights of the parties are to be decided. In a suit for partition, the subject matter of Spl.C.S.No.8/2006 is one of the property. When the substantive suit in which the rights of the parties are going to be decided is filed, then the learned Trial Court had rightly observed that the petitioner is not a necessary party in a suit for specific performance to which the petitioner or the other claimants are not party to the document under challenge. It is observed by the Trial Court in para no.6 of the order that the defendants i.e. respondent no.2 and 3 have already taken the plea of non joinder of this applicant and other sisters and tenability of the suit for non joinder of necessary parties. According to advocate for petitioner, no such issue was framed to that effect. As this stand is taken by the real brothers of the petitioner, it is for the petitioner to request her real brother to move the Court under Order 14 Rule 5 of CPC. In the premise, I do not find any fault with the order passed by the Trial Court which required any interference. 2. When the dictation of this order was in progress, it is stated across the bar that as the suit for specific performance is earlier in time, there is every likelihood that this suit will be heard prior in time and in that case, if the suit for partition is decided at the later 3 stage, then there is apprehension in the mind of the petitioner that there is likelihood that his rights will be defeated. Bearing in mind this apprehension, even though no interference is required in the order passed by the Trial Court. Direction to be issued to the Trial Court that the hearing of Spl.C.S.No.8/2006 and hearing of the partition suit filed by the petitioner to be heard simultaneously and to be decided simultaneously to root out the apprehension in the mind of the petitioner. With this clarification, the petition stands disposed of as devoid of any merit. (A.V.POTDAR, J.) khs/wp2479-09