I have considered the submissions made on behalf of the parties and perused the
issues in the previous suit and the instant suit. I have also perused the plaint in R.C.S.
No.133/1997 along with plaint in R.C.S. No.60/2002. It is pleaded by the petitioner in
R.C.S. No.133/1997 that the defendants in that suit which included respondents no.1 and
2 had started claiming rights over the temple and were seeking permission to come to
the temple at any time. It was stated that the defendants tried to disturb the possession of
the temple. The petitioner had therefore, sought a
the petitioner in the field and
permanent injunction restraining the defendants from disturbing the peaceful possession
of the petitioner over the field and the Mandir. It is necessary to note that before the
R.C.S. No.60/2002 was filed by repsondent no.1 and 2, the suit of the petitioner was
decreed and though the permanent injunction was granted against the defendants
restraining them from disturbing the peaceful possession of the petitioner over the field
property the defendants and all the villagers were allowed to perform the Pooja and
archa in the temple of goddess situated in the suit property lawfully as per their religious
rights. The respondent no.1 and 2 have pleaded in R.C.S.No.60/2002 that they were
members of the Mang Community and had a right to perform Pooja and archa in the
temple of the goddess and the petitioner was restraining them in performing the Pooja
and archa. Therefore they had sought a declaration that they being members of Mang
Committee should be permitted to perform Pooja and archa in the said temple along with
other villagers according to their religious rights and customs. It is necessary to note that
this relief was already granted to the respondent no.1 and 2 by the judgment and decree
dated 29.1.2001. The issue no.3 in the first suit was common to the other issues involved
in the present suit. The respondents no.1 and 2 were trying to agitate the same questions
before the court by filing a second suit i.e. R.C.S. No. 60/2002 though the relief sought
in the said suit was already granted by the judgment and decree dated 29.1.2001 in the
previous suit. Since the issues involved in both the suits were common, it was necessary
Procedure. The trial court was not justified in rejecting the
of the Code of Civil
for the trial court to have allowed the application filed by the petitioner under section 10
application only on the ground that the relief claimed in the first suit was not similar to
the relief claimed in the second suit as in the first suit a permanent injunction was sought
and in the second suit a declaration was sought. The approach of the trial court in
considering the matter was not just and proper. In the facts and circumstances of the
case, the trial court ought to have allowed the application filed by the petitioner under
section 10 of the Code of Civil Procedure.
NAGPUR BENCH: NAGPUR
WRI TPETITION NO.4427 OF 2003
IN THE HIGH COURT OF JUDICATURE AT BOMBAY:
Amarchand s/o Kunjilal Sharma,
VERSUS
Kondu s/o Dagdu Paulkar,
CORAM: SMT. VASANTI A. NAIK, J
DATE: 5TH NOVEMBER, 2009
Citation;2010(10 Bom CR 803 Bom
By this petition, the petitioner impugns the orders passed by the Joint Civil Judge,
Senior Division, Washim dated 11.9.2003, rejecting the application filed by the
petitioner under section 10 of the Code of Civil Procedure for staying the suit. The
respondent no.1 and 2 had filed the Regular Civil Suit No.60/2002 against the petitioner
alleging therein that they had a right to perform Pooja and archa in the temple of Devi-
goddess situated in Field Gat No.374, measuring 1 hectare 48 r, of village Wanoja. The
respondent no.1 and 2 had prayed for a declaration that they being the members of Mang
Community, had a right of Pooja and archa in the said temple along with other villagers
of the village Wanoja. It was pleaded by the respondent no.1 and 2 that the petitioner
was restraining the respondent no.1 and 2 from performing their pooja and archa in the
2]
said temple.
Prior to the institution of the Regular Civil Suit No.60/2002 by the respondent no.
1 & 2, the petitioner had instituted a suit against seven defendants and respondent no.1
and 2 were defendants no.4 and 5 in the said suit. The suit filed by the petitioner was
registered as Civil Suit No.133/1997. It was the case of the petitioner in Civil Suit NO.
133/1997, that the defendants in that suit including the respondent no.1 and 2 were
disturbing the peaceful possession of the petitioner, over the suit field and the Mandir of
goddess – Devi. The petitioner, had therefore sought a decree of permanent injunction
restraining the defendants in Regular Civil Suit No.133/1997 from disturbing the
peaceful possession of the petitioner over the field and the Mandir. It is necessary to
note that the civil suit filed by the petitioner was decreed by the judgment dated
29.1.2001. The trial court had permanently restrained the defendants in Regular Civil
Suit No.133/1997 from disturbing the peaceful possession of the petitioner over the
property. However, the defendants, including the respondent no.1 and 2 and all the
villagers of the village were allowed to perform Pooja and archa in the temple of
goddess – devi situated in the suit land.
In view of the decree passed in the previous suit i.e. regular Civil Suit nO.
3]
133/1997, the petitioner pleaded that the suit filed by the respondent no.1 and 2 i.e.
R.C.S.No.60/2002 was not maintainable. The petitioner had pleaded that the relief
sought by the respondent no.1 and 2 in Regular Civil Suit No.60/2002 was already
granted to the respondent no.1 and 2 and all the villagers by the judgment and decree
dated 29.1.2001. According to the petitioner the issues involved in both the suits were
common and hence it was necessary to stay the suit filed by the respondent no.1 and 2.
The application filed by the petitioner was however, dismissed by the trial court by the
impugned order dated 11.9.2003.
4]
Shri C.A. Joshi, the learned counsel for the petitioner took this court through the
issues framed in the previous suit and the present suit to show that they were common
and the trial court committed an error in dismissing the application filed by the petitioner
by impugned order dated 11.9.2003. The learned counsel for the petitioner submitted
that the relief claimed by respondent no.1 and 2 in R.C.S.No.60/202 was already granted
to the respondent no.1 and 2 and the other villagers by the judgment and decree dated
29.1.2001. The learned counsel for the petitioner submitted that in case it was the case of
respondent no.1 and 2 that the petitioner was preventing them from performing Pooja
and archa in the temple of the goddess, the respondent no.1 and 2 could have sought the
Shri S.S. Deshpande, the learned counsel for the respondent no.1 and 2 supported
5]
execution of the decree, but could not have filed the R.C.S.No.60/2002.
the order passed by the learned trial court on 11.9.2003 and submitted that the previous
suit filed by the petitioner was for permanent injunction and the present suit filed by
respondent no.1 and 2 is for declaration that they belong to Mang Community and they
have a right of Pooja and archa in the temple of the goddess. The learned counsel for the
respondent no.1 and 2 submitted that the issues in both the suits were not common and
the trial court had rightly dismissed the application filed by the petitioner. The learned
counsel for the respondent no.1 and 2 sought for dismissal of the writ petition.
6]
Shri Ahirkar, the learned A.G.P. for respondents no.4 and 5 had nothing much to
say in the matter, as according to him the said controversy was mainly between the
petitioner and the respondents no.1 and 2.
7]
I have considered the submissions made on behalf of the parties and perused the
issues in the previous suit and the instant suit. I have also perused the plaint in R.C.S.
No.133/1997 along with plaint in R.C.S. No.60/2002. It is pleaded by the petitioner in
R.C.S. No.133/1997 that the defendants in that suit which included respondents no.1 and
2 had started claiming rights over the temple and were seeking permission to come to
the temple at any time. It was stated that the defendants tried to disturb the possession of
the temple. The petitioner had therefore, sought a
the petitioner in the field and
permanent injunction restraining the defendants from disturbing the peaceful possession
of the petitioner over the field and the Mandir. It is necessary to note that before the
R.C.S. No.60/2002 was filed by repsondent no.1 and 2, the suit of the petitioner was
decreed and though the permanent injunction was granted against the defendants
restraining them from disturbing the peaceful possession of the petitioner over the field
property the defendants and all the villagers were allowed to perform the Pooja and
archa in the temple of goddess situated in the suit property lawfully as per their religious
rights. The respondent no.1 and 2 have pleaded in R.C.S.No.60/2002 that they were
members of the Mang Community and had a right to perform Pooja and archa in the
temple of the goddess and the petitioner was restraining them in performing the Pooja
and archa. Therefore they had sought a declaration that they being members of Mang
Committee should be permitted to perform Pooja and archa in the said temple along with
other villagers according to their religious rights and customs. It is necessary to note that
this relief was already granted to the respondent no.1 and 2 by the judgment and decree
dated 29.1.2001. The issue no.3 in the first suit was common to the other issues involved
in the present suit. The respondents no.1 and 2 were trying to agitate the same questions
before the court by filing a second suit i.e. R.C.S. No. 60/2002 though the relief sought
in the said suit was already granted by the judgment and decree dated 29.1.2001 in the
previous suit. Since the issues involved in both the suits were common, it was necessary
Procedure. The trial court was not justified in rejecting the
of the Code of Civil
for the trial court to have allowed the application filed by the petitioner under section 10
application only on the ground that the relief claimed in the first suit was not similar to
the relief claimed in the second suit as in the first suit a permanent injunction was sought
and in the second suit a declaration was sought. The approach of the trial court in
considering the matter was not just and proper. In the facts and circumstances of the
case, the trial court ought to have allowed the application filed by the petitioner under
section 10 of the Code of Civil Procedure.
8]
In the result, the writ petition is allowed. The impugned order dated 11.9.2003 is
hereby quashed and set aside. The application filed by the petitioner under section 10 of
the Code of Civil Procedure is hereby allowed. Rule is made absolute in the aforesaid
terms with no order as to costs.
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