Shri Gaurav Mehrotra, learned counsel for the appellants, while assailing the order dated 15.02.2024 passed in Regular Suit No.2464 of 2023; Shabih Fatima and others Versus Israr Hussain and another passed by the Civil Judge (Sr.Div.), Mohanlalganj, Lucknow on the Application No.6-Ga, under Order 39 Rule 1 and 2 C.P.C. and the objection against the same filed by the appellants, submits that the predecessor-in-interest of the respondents-plaintiffs had filed two Suits in regard to property in question; one for partition against the appellantdefendant no.1 and other for cancellation of sale deed executed by the appellant-defendant no.1 in favour of the appellantdefendant no.2. While filing the objections a plea of the maintainability of the suit was raised on the ground that since in regard to the property in dispute two suits are pending, therefore the 3rd suit is not maintainable and secondly the proceedings of the suit are liable to be stayed during pendency of the said suits under Section 10 of the Civil Procedure Code, but despite recording in the order have not been considered and no finding has been recorded on the same, whereas without recording any prima facie finding on the maintainability of the suit the trial court could not have proceeded even to decide the application for interim injunction. In this regard he relies on Asma Lateef and another Versus Shabbir Ahmad and others; 2024 SCC OnLine SC 42, Manubhai J.Patel and another Versus Bank of Baroda and others; (2000) 10 SCC 253 and T.K.Lathika Versus Seth Karsandas Jamnadas; (1999) 6 SCC 632.
