Dismissed

Nitin Sitaram Waghmare and Anr. v. Balu Kanha Gawade and Ors.

Bombay HC17 Jun 2022IA/3741/2022

Case brief

AI extract

What is this about?

In an interim application, the High Court rejected a request to modify an order dated 17.05.2022 that directed simultaneous hearing of two suits. The Court held that the suits involved distinct parties, causes of action, and reliefs, making the prior order appropriate.

What did the court decide?

Application seeking modification of the judgment and order dated 17.05.2022 stands dismissed.

Nitin Sitaram Waghmare and Anr. Vs Balu Kanha Gawade and… — Property and Title | Bombay HC (2022)

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1.ia.3741.22.doc

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Ajay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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INTERIM APPLICATION NO. 3741 OF 2022

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IN

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WRIT PETITION NO. 4358 OF 2022

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Nitin Sitaram Waghmare and Anr...Applicants

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Versus

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Balu Kanha Gawade and Ors...Respondents

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Mr. C.S. Joshi, Advocate for the Applicants

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None for the Respondents.

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CORAM :MILIND N. JADHAV, J.

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DATE:JUNE 17, 2022.

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P.C.:

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1. Heard learned counsel appearing for the Applicants.

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2. By the present Interim Application, the Applicants have

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prayed for the following relief:

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(a) to clarify / modify of order dated 17.05.2022 as per section 152 of C.P.C;1908 and Order of Hon'ble Apex Court, 2003 AIR (SC), page 4043, S.K. Mandal and Ors. Vs. State of Bihar and Ors.; para 11

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Or

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This Hon'ble Court may recall the Order passed on
17.05.2022, due to misconception of facts and suo motu
review be ordered."

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3. Perused the Interim Application and judgment and order

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dated 17.05.2022 passed by this Court while disposing of Writ Petition

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No.4358 of 2022.

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1.ia.3741.22.doc

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4. Mr. Joshi, learned counsel appearing on behalf of the Applicants has vehemently argued that the correct facts have not been appreciated and recorded while passing the judgment and order dated 17.05.2022 in as much as the cause of action of filing both the subject suits is the same and the cause of action has continued which has been specifically stated in the original petition. He has further argued that the subject property in both the suits is also the same and therefore submits that such clarification be given by this Court before the Applicants move the Apex Court to challenge the judgment and order dated 17.05.2022.

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5. The reasons given by this Court while disposing of the Writ Petition on 17.05.2022 are contained in paragraph Nos.11 to 15 of the said judgment which are reproduced hereunder for convenience:

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"11.The Petitioners have clearly admitted in the petition
that save and except the description of the suit property, the
parties to both the suits are not identical as also the reliefs
claimed in both the suits are distinctly different. It is pertinent
to note that in RCS No.537 of 2012 the Petitioners herein
(being Defendants therein) have filed a counter claim in the
said suit for injunction. Admittedly, RCS No.537 of 2012 is a
suit for injunction only whereas RCS No.149 of 2015 is a suit
for specific performance, declaration and execution of sale
deed.

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12.The names of the parties in the cause title of the
plaint and the reliefs in RCS No.537 of 2012 are reproduced
hereunder:-

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" Jh- ckGw dkUgq xkoMs vkf.k Jh- izdk'k gsejkt xkoMs fo#/n Jh- flrkjke ikaMqjax ok?kekjs vkf.k furhu flrkjke ok?kekjs " "Prayer:-

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1.ia.3741.22.doc

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9½ rjh es- dksVkZl oknhph fouarh dh]

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v½ nkok dye 1 e/;s o.kZu dsysY;k ekSts dsG.kh ;sFkhy lOgZs ua- 44 fgLlk ua- 2 ¼o½ {ks= 85 xqaBs ;k nkok feGdrhoj izfroknhauh vFkok R;kapsrQsZ uksdjpkdj] vkIr] ukrsokbZd vFkok brj dks.khgh oknhaps dCtk ofgokVhl] miHkksxkl o ekydhl izrhoknhuh dks.kR;kgh izdkjs gjdr vMFkGk d: u;s vlk rqrkZrqrZ eukbZ gqdwe izfroknhoj fn<h izkslslus ctkokok- "

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13. The names of the parties in the cause title of the
plaint and the reliefs in RCS No.149 of 2015 are reproduced
hereunder:-

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"Shri. Sitaram Pandurang Waghmare
(since deceased through Legal Heirs)
Smt. Subhadra Sitaram Waghmare & Ors.
Vs
Draupadi Waman Bhoir & Ors."
"Prayer-
a) to direct the Defendants to obtain sale
permission of the land i.e. Survey No.44(2b)
at Kelni, Tal. Kalyan, Dist. Thane, admeasuring
85 gunthas on the name of the Plaintiff and
execute the sale deed of the said agricultural
land on his name and register the same before
the Sub-Registrar, Kalyan."

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14. Thus, it is seen that in RCS No.537 of 2012 the
original owner of the suit property is not a contesting party.
Defendant No.1 in RCS No.537 of 2012 has expired and is
represented by his wife Subhadra, daughter Neeta and son
Nitin. However only Nitin has been impleaded as a party
Defendant along with his deceased father Sitaram as
Defendants. Contention of the Plaintiffs in RCS No.537 of 2012
is that they are in possession of the suit property. Whereas it is
the contention of the Defendants in RCS No.537 of 2012 (as
Plaintiffs in RCS No.149 of 2015) that they are in possession of
the suit property. There is also a dispute raised by the
Defendants about sale of a portion out of the suit property in
RCS No.149 of 2015 and carving out a separate Survey
No.44(2b) and the concerned sale deed dated 15.05.2008 being
under challenge.

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15. In view of the aforesaid discussion and findings, it is
apparent that in the first instance the parties to both the suits
are distinctly different. Admittedly, the cause of action for filing
both the suits and the reliefs claimed in both the suits are also
different. In the 2012 suit where injunction is sought the
reference to the suit property is for the entire 85 gunthas
whereas in the subsequent suit of 2015 where declaration,
execution and cancellation is sought, reference to the suit

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1.ia.3741.22.doc

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property is to a portion out of 85 gunthas with reference to
three sale deeds dated 06.07.1994, 13.05,1995 and
15.05.2008. Most importantly, as noted by the learned Trial
court the evidence of the Plaintiff in the first suit i.e. RCS
No.537 of 2012 has been completed. Hence the learned Trial
court has correctly thought it fit to hear both the suit
proceedings simultaneously for effective and speedy disposal, in
view of the fact that the Plaintiffs in both the suits are asserting
their possession to the suit property but with reference to
different transactions and different points of time."

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6. From the above, it is seen that the submissions advanced by

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the Applicants in the present Interim Application cannot be
countenanced as facts have been recorded appropriately and correctly
as per the pleadings. This Court has come to the conclusion that the
parties to both the subject suits filed before the trial court are distinctly
different. This can be merely compared by looking at the cause title of
the two suits in question. It is reiterated that in respect of one suit i.e.
RCS No.537 of 2012, the evidence of the Plaintiff before the trial court
has been completed whereas in respect of the second suit i.e. RCS No.
149 of 2015 (the later suit), evidence is yet to begin. The relief given
by the trial court that both the suits shall be heard by the same Judge
and be disposed of as expeditiously as possible is the best relief that
could be granted to the Applicants in the interest of justice. Hence the
application of the Applicants on the aforesaid ground seeking
modification of the factual circumstances stands comprehensively
rejected.

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1.ia.3741.22.doc

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7. Next the learned counsel appearing for the Applicants submits that the citations referred to and relied upon by the Petitioners have not been referred to by this Court. The reasons which are enumerated in paragraph Nos.11 to 15 of the judgment and order dated 17.05.2022 are preceded by the facts which have been stated by the parties. Since both the principal grounds pleaded by the Petitioners have been adequately considered, dealt with and rejected with reasons, there is no reason as to why this Court should now clarify and distinguish the judgment referred to and relied upon by the Petitioners, as it is not found necessary at all. The Petitioners have failed to make out their case and therefore adequate reasons have been given for rejecting the request of the Petitioners to lead common evidence in the two suit proceedings under the provisions of Section 114 read with Order 47 of the Code of Civil Procedure, 1908.

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8. In view of the above reasons, the interim application seeking modification of the judgment and order dated 17.05.2022 stands dismissed.

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[ MILIND N. JADHAV, J. ]

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SONALI Digitally signedby SONALI SATISH SATISH KILAJEDate: 2022.06.24 KILAJE 12:07:19 +0530

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Nitin Sitaram Waghmare and Anr. v. Balu Kanha Gawade and Ors.

Case brief

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Nitin Sitaram Waghmare and Anr. v. Balu Kanha Gawade and Ors.

Case brief

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