Shri. Shamsundar Shankarlal Varma v. Shri. Ramesh Janu Hingane Since Deceased Through Legal Heirs

913 WP 3361 OF 2018.odt vks

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3361 OF 2018 Shamsundar Shankarlal Varma ...

Petitioner V/s.

Ramesh janu Hingane (decd) Through Smt. Ahilya Hingane and ors ...

Respondents Mr. Girish R. Agrawal, for the Petitioner.

Mr. Purshottam G. Chavan, for the Respondents. CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

DATE : 3RD APRIL, 2018.

P.C. :

1] Heard learned counsel for the petitioner and respondents. 2] By this petition filed under Article 227 of the Constitution of India, the petitioner is challenging the order dated 9th February, 2016 passed below exh. 67, by Civil Judge Senior Division, Pune in Special Civil Suit No.2626 of 2012.

3] The said application was filed on behalf of the original defendant, who is respondent herein on the ground that by the order dated 8.10.2013, below the application at Exh.31, the trial Court was pleased to club the two suits, bearing R.C.S.No.409 of 2011, filed by respondents for possession and Suit No.2626 of 2012 filed by the petitioner for specific performance of the contract. It was submitted 1/2

913 WP 3361 OF 2018.odt that as both the suits are different and seeking different reliefs, they cannot be clubbed together. The trial Court, accepted the contention and allowed the application, directing that instead of clubbing the matters together, both the suits be tried simultaneously. 4] However, the perusal of the order passed by the trial Court below the application Exh.33, clearly goes to show that the suits were not directed to be clubbed together, but the order was passed, only to record common evidence in both the suits. In such situation, the very ground on which trial Court has proceeded to pass the impugned order, is not correct and as a result consequential order of directing the suits to be proceeded simultaneously, has become erroneous. Order.

5] Admittedly the parties to both the suits are same, the subject matter is also the same. Even assuming that the reliefs claimed in both suits are different, the evidence will be one and the same. Hence, the earlier order passed by the trial Court of recording common evidence in both these suits need not have been disturbed by the trial Court.

6] Hence Writ Petition is allowed.

7] The impugned order passed by the trial Court is quashed and set aside.

[DR.SHALINI PHANSALKAR-JOSHI, J.] 2/2