Shri. Balasaheb Baburao Wagh And ANR v. Bashir Gajimiyan Fakir And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO.13953 OF 2017 Balasaheb Baburao Wagh and anr ...

Petitioners V/s.

Akhatar Budhan Fakir (decd) Through LRs ...

Respondents ALONG WITH WRIT PETITION NO.13954 OF 2017 Balasaheb Baburao Wagh and anr ...

Petitioners V/s.

Bashir Gajimiyan Fakir and anr ...

Respondents Mr. M.M. Sathaye i/by Sanjay P. Shinde, for the Petitioners in both the petitions.

Ms. Kavita Totkekar, i/by Sandip D.Shinde,for the Respondents in both the petitions.

CORAM : DR.SHALINI PHANSALKAR-JOSHI, J.

DATE : 12st MARCH, 2018.

P.C. :

1] Heard learned counsel for the petitioners and learned counsel for the respondents.

2] By these petitions, filed under Article 227 of the Constitution of India, the petitioners are challenging the common order dated 1st November, 2017, passed by Civil Judge Junior 1/3

Division, Chandwad, District: Nashik, below Exh.35 in R.C.S. No.68 of 2012 and below Exh.54 in R.C.S.No.69 of 2012. 3] Both these applications were filed by respondents in above petitions for staying both the above suits under Section 10 of Civil Procedure Code, in view of the pendency of the earlier suit bearing R.C.S.No.57 of 2009 between the same parties. The trial Court has allowed the said applicatin. Hence the instant Writ Petitions. 4] Learned counsel for the petitioners submits that the earlier Suit bearing R.C.S.No.57 of 2009, was simpliciter for injunction filed by the petitioners and the said suit has been withdrawn by filing withdrawal pursis on 9th March, 2018.

A certified copy of the order passed on the withdrawal pursis is also produced on record which shows that the trial Court has allowed the withdrawal of the said suit subject to costs and accordingly costs are deposited by the petitioners. By the said order, the trial Court has directed that the counter claim of the respondent-defendants will be proceeded further. 5] In view of withdrawal of the earlier suit bearing R.C.S. No.57 of 2009, the bar of Section 10 of Code of Civil Procedure, at this stage does not remain. As the impugned order of staying these suits was passed on the ground that earlier Suit R.C.S/No.

aside.

6] Accordingly, both the Writ Petitions are allowed. The impugned common order passed by the trial Court is quashed and set aside.

[DR.SHALINI PHANSALKAR-JOSHI, J.] 3/3