Bombay High CourtWP/7519/2019allowed

Smt. Kalawati Wd/O Rajaramji Sathaone v. Yashwant S/O Harishchandra Deshmukh

2021-09-28Hon'Ble Shri Justice Avinash G. Gharote2 pages

11..wp.7519.2019 Judg.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR WRIT PETITION NO.7519 /2019 Smt. Kalawati wd/o Rajaramji Sathaone Aged about - 60 yrs, Occ- Agriculturist, R/o- Village Dhanla, Tahsil - Mouda, District - Nagpur.

..... PETITIONER [Orig. Plaintiff] // VERSUS // Yashwant s/o Harishchandra Deshmukh Aged about - 54 yrs, Occ- Agriculturist, R/o - Village Dahegaon, Tahsil - Mouda, District - Nagpur.

.... RESPONDENT [Orig. Defendant] - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A. K. Neware, Advocate for petitioner Shri G. S. Sengar, Advocate for respondent.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM :

AVINASH G. GHAROTE, J.

DATED : 28/09/2021 ORAL

JUDGMENT

1] Heard Mr. Neware, learned Counsel for the petitioner and Mr. Sengar, learned Counsel for the respondent. 2] Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. 3] The original plaintiff, in Regular Civil Suit No.27 of 2015 has filed a suit for specific performance, as against which, the defendant therein had filed a Regular Civil Suit No.44 of 2015 for declaration,

11..wp.7519.2019 Judg.odt possession, permanent injunction and damages. An application for clubbing both the suits was filed, in view of the fact that common issue was raised regarding the Agreement, in question, which would require recording of common evidence. The said application came to be rejected by the impugned order and the Regular Civil Suit No.44 of 2015 came be stayed under Section 10 of the Code of Civil Procedure. 4] Both the learned counsel are agreeable that since common issue arises and common evidence would be required it would be proper that both the suits be clubbed and tried together. In fact, when this request was made there was no reason whatsoever for the learned Trial Court to have rejected the application in this regard and stayed the subsequent suit.

5] In that view of the matter, Writ Petition is allowed and the order below Exh.1 in Regular Civil Suit No.27 of 2015 is hereby quashed and set aside. The application at Exh.35 for clubbing both the suits is allowed. Both these suits shall be tried together. Rule is made absolute in above terms. No costs. (AVINASH G. GHAROTE, J) Sarkate.