Dismissed

Balaji Suryakant Choudhari v. Mangalabai Ganesh Chidrawar and Ors.

Bombay HC19 Dec 2013WP/3584/2012

Case brief

AI extract

What is this about?

This single judge rejected an application under Section 10 of the CPC filed before issue framing in a subsequent suit. The writ petition challenging the rejection was not allowed as the earlier suit is pending. The petitioner is directed to file a fresh application after issue framing.

What did the court decide?

Writ petition disposed of; fresh application under S. 10 CPC may be filed after issues in suit No. 19/2012 are framed.

Balaji Suryakant Choudhari Vs Mangalabai… — Civil Procedure and Limitation | Bombay HC (2013)

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1 wp 3584.12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3584 OF 2012

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Balaji Suryakant Choudhari .. Petitioner Versus Mangalabai Ganesh Chidrawar and others .. Respondents

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Shri U. B. Bilolikar, Advocate for the Petitioner. Shri H. I. Pathan, Advocate for the Respondent No. 1.

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CORAM : S. V. GANGAPURWALA, J. DATE : 19TH DECEMBER, 2013.

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PER COURT :

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. The petitioner had filed application U/Sec. 10 of the Code of Civil Procedure. The same is rejected. Aggrieved thereby present petition.

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Mr. Bilolikar, the learned counsel for the petitioner relies on the judgment of the learned Single Judge of this Court in a case of Gregorio Pereira (deceased) through L.Rs. and another Vs. Damazio Bento Pereira and others reported in 2004(3) All M.R. 520 to contend that, if any finding would operate as res-judicata, same is required to be stayed.

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Mr. Pathan, the learned counsel supports the order.

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Sec. 10 of the Code of Civil Procedure, if applicable stays the

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2 wp 3584.12

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trial of the subsequent suit and it does not operate to the stages prior to the trial of the suit.

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In the subsequently instituted suit, where the application is filed, the trial has not commenced. The issues have not been framed. The Trial commences when a party files its examination in chief.

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In the light of the above, the application U/Sec. 10 of the C. P. C. filed by the present petitioner itself was premature. The issues also are not framed in the subsequently instituted suit. In the light of that the application U/Sec. 10 of the C. P. C. could not have been considered.

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In the result, the application U/Sec. 10 of the C. P. C. filed by the present petitioner stands rejected at this stage. After the issues are framed by the Court in a subsequently instituted suit i. e. suit bearing R.C.S. No. 19/2012. The petitioner may file fresh application U/Sec. 10 of the C. P. C., which application would be considered on its own merits. The writ petition accordingly is disposed of.

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[ S. V. GANGAPURWALA, J. ]

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bsb/Dec. 13

Balaji Suryakant Choudhari v. Mangalabai Ganesh Chidrawar and Ors.

Case brief

What is this about?

What did the court decide?

Balaji Suryakant Choudhari v. Mangalabai Ganesh Chidrawar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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