Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1147/2020 (Old N/m No. 2993/19) in 1 Order.
S.C.Suit No. 414/2020 (Old S.C.Suit No. 3787/18).
MHCC010032072020
Presented on : 14-03-2020
Registered on : 14-03-2020
Decided on : 10-12-2022
Duration : 2 years, 8 months, 27 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1147 OF 2020
(Old Notice Of Motion No. 2993 OF 2019)
IN
S. C. SUIT NO. 414 OF 2020
(Old S. C. SUIT NO. 3787 OF 2018)
Sujata Raghuvir Bhawsar )...Plaintiff
Versus
Rajesh Shrikrishna Bhavsar and one )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 10th DECEMBER, 2022.
Shri Vikas Rele, Advocate for defendant no.1.
Smt. Seema Chopda, Advocate for the plaintiff.
Shri S.P.Patankar, Advocate for defendant no.2.
ORDER
1. Defendant no.1 has taken out the notice of motion for
staying hearing of Notice of Motion No. 642/2019 (New Notice of
Motion No. 1068/2020) and this suit till the hearing in Suit No.
4769/2007 (Old H.C.Suit No. 897/2007) is finally heard and disposed
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N/m No. 1147/2020 (Old N/m No. 2993/19) in 2 Order.
S.C.Suit No. 414/2020 (Old S.C.Suit No. 3787/18).
off. Perused notice of motion, affidavits in reply filed by the plaintiff
and defendant no.2 and rejoinders filed by defendant no.1. I have gone
through the suit proceedings of the present suit and suit bearing No.
4769/2007. Heard learned counsel Shri Vikas Rele for defendant no.1,
learned counsel Smt. Seema Chopda for the plaintiff and learned
counsel Shri S.P.Patankar for defendant no.2.
2. On perusal of the record, it appears that defendant no.2
Kalpana had filed S.C.Suit No. 4769/2007 against her mother Vimal,
defendant no.1 Rajesh (brother), present plaintiff (sister) and one
Kirtibhai Zaveri, developer (defendants no.1,2,3 and 4 respectively in
the said suit) for the relief of appointment of the Court Receiver and for
partition and separate possession of her 1/4th share in the suit property
with other reliefs.
3. Subsequently, plaintiff Sujata (defendant no.3 in earlier
suit) filed the present suit against defendant no.1 Rajesh (brother) and
defendant no.2 Kalpana (sister) seeking identical relief of partition and
possession of her separate 1/3rd share in the suit properties.
4. On perusal of contents in both plaints, the plaintiff in
earlier suit has sought reliefs in respect of the properties described in
Exhibit P of the plaint. The plaintiff in the present suit has sought
partition in respect of the properties as described in Exhibit C of the
plaint of the present suit. There is difference in properties which are
subject matter in both suits. Considering relationship between the
parties and their claims, it is settled legal position that the defendants in
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N/m No. 1147/2020 (Old N/m No. 2993/19) in 3 Order.
S.C.Suit No. 414/2020 (Old S.C.Suit No. 3787/18).
partition suit assumes legal status of the plaintiff. Rights and shares of
both sides in the suit properties are determined while deciding the suit.
As mother Vimal of the plaintiffs in both suits died during pendency of
these suit proceedings, present plaintiff has increased her share while
claiming the partition. It is necessary to consider all properties which
may be subject matter for determining claim of the plaintiffs regarding
partition. While partitioning the properties, all movable and immovable
assets are expected to be thrown into common hotchpot and nothing is
expected to be left behind. In short, claims of the plaintiffs in both suits
cannot be decided separately.
5. Learned counsel Shri Vikas Rele has relied upon Section 10
of the CPC while pressing for relief of stay of the suit which is filed
subsequently. Learned counsel Shri Vikas Rele for defendant no.1 has
relied upon observations in para 2 in the case of Jai Hind Iron Mart
V/s. Tulshiram Bhagwandas A.I.R. 1953 BOMBAY 117 and submitted
that there is bar to proceed ahead in the suit which is filed
subsequently. He also relied upon observations of Hon'ble Supreme
Court in the case of National Institute of Mental Health and Neuro
Sciences V/s. C. Parameshwara AIR 2005 SUPREME COURT 242. In
this citation, test is laid down to attract section 10 of the CPC. It is
observed in para 8 that the fundamental test to attract section 10 is,
whether on final decision being reached in the previous suit, such
decision would operate as res judicata in the subsequent suit.
6. Considering the nature of both suits and reliefs claimed by
the parties, legal status of both sides is already discussed earlier. If
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S.C.Suit No. 414/2020 (Old S.C.Suit No. 3787/18).
pleadings and reliefs in both suits are considered in isolation by keeping
the new suit pending and without taking into account pleadings therein,
trial in the new suit may result into affecting the verdict in the earlier
suit upon final adjudication. There are chances of contradictory
decisions in both matters. It is for the specific reason that suit properties
as well as shares claimed in both suits are fluctuating and they are at
variance. Ultimately, decisions in partition suit are expected to bring
certainty and clarity in shares of parties and put an end to their dispute
in respect of the properties. For this reason, filing of separate suits by
siblings for partition by showing different properties as subject matter of
partition and staying of subsequent suits would result into anomalous
situation. Test laid down in the case of National Institute (cited supra)
is not satisfied in the case in hand. In the result, there is no scope to
apply the ratio in the citation to the case in hand.
7. The factual aspect reveals that there is no similarity in
claim made by the parties and also in the properties which are expected
to be partitioned. In short, subject matter of both suits has variation and
therefore, both suits are required to be decided together. For this
purpose, certain clarification is necessary before commencing trial in
these suit proceedings. Common evidence can be recorded in earlier suit
and both suits can be decided by way of common judgment. Hence, I
pass the following order :
ORDER
1. Notice of Motion No. 1147/2020 (Old Notice of Motion No.
2993/2019) is partly made absolute in terms of prayer
clause (c) with following directions to the parties in present
suit i.e. S.C.Suit No. 414/2020 (Old S.C.Suit No.
3787/2018) and S.C.Suit No. 4769/2007 (Old H.C.Suit No.
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N/m No. 1147/2020 (Old N/m No. 2993/19) in 5 Order.
S.C.Suit No. 414/2020 (Old S.C.Suit No. 3787/18).
897/2007) as under :
(i) Evidence in S.C.Suit No. 4769/2007 (Old H.C.Suit
No. 897/2007) shall be adduced by both sides in these two
suits i.e. S.C.Suit No. 414/2020 (Old S.C.Suit No.
3787/2018 and S.C.Suit No. 4769/2007 (Old H.C.Suit No.
897/2007).
(ii) Evidence recorded in S.C.Suit No. 4769/2007 shall
be read in both suits.
(iii) Both suits shall be decided by common judgment
after hearing both sides on merit.
(iv) It is made clear that both sides are expected to
consider their respective stands in both suits and file
evidence affidavit in support of their respective pleadings.
2. Proceeding of N/m No. 1147/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 10/12/2022. Mumbai.
1. Dictated on : 10/12/2022.
2. Transcribed on : 12/12/2022.
3. Signed on : 13/12/2022.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 1147/2020 (Old N/m No. 2993/19) in 6 Order.
S.C.Suit No. 414/2020 (Old S.C.Suit No. 3787/18).
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
13/12/2022. 5.30 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 10/12/2022.
Judgment/Order signed by P.O. on 13/12/2022.
Judgment/Order uploaded on 13/12/2022.
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