MANSANGBHAI KANJIBHAI PANCHASARA Vs. KARSHANBHAI SANKARBHAI PANCHASARA

JUDGEMENT

(1.) THE petitioner has filed this petition under Articles 226 and 227 of the Constitution of India, challenging order dated 13.7.2011 passed by the learned Principal Civil Judge, Halvad in Civil Suit No.138 of 2007, whereunder, application Exh.18 preferred by the respondent under Section 10 of the Code of Civil Procedure, 1908 is allowed and the proceedings of Civil Suit No.138 of 2007 are stayed till final disposal of the Civil Suit No.93 of 2004.

(2.) THIS Court on 14.10.2011, passed the following order:- Heard learned advocate Ms. Parikh for the petitioner. It appears from the copy of the plaint of Civil Suit No.93 of 2004 and Civil Suit No.138 of 2007 that the parties to both the suits are different and reliefs claimed in both the suits are also different. Even, there is no mention about survey number of the said property in Civil Suit No.138 of 2007. Hence, Rule returnable on 15.12.2011. THIS petition is thus taken up for final hearing today.

(3.) LEARNED advocate for the petitioner submitted that the learned Judge has exceeded in his jurisdiction while allowing Exh. 18 application though the ingredients of Section 10 of the Code were not at all satisfied. She submitted that the issue in both the suits as also the cause of action are totally different. She submitted that the earlier suit was for permanent injunction, restraining the respondent from entering on the land bearing Survey No.916 and also for permanent injunction restraining the respondent from transferring or in any way alienating the above-said land as also the other properties of the father of the petitioner. Whereas, the later suit is for restraining the respondent from in any way damaging the articles/ belongings of the petitioner and his family members as also from taking away the possession of the residential house which has been in occupation of the petitioner right from 1998. She would, therefore, submit that in the later suit, the prayer is made simply to protect the possession of the residential house and to see that the respondent may not take law in his hand and may not evict the petitioner without following the due procedure of law. She states that the later suit is filed on the basis of the possession of the suit house and the petitioner is entitled to protect the possession of the suit house irrespective of even title. She further submitted that in no circumstances, the issue involved in the earlier suit can be said to be the same or similar issue involved in the later suit. She submitted that even if the right, title and interest are not decided in the later suit, still as per the settled principle of law, the possession can be protected as against the person who wants to take law in his hand. She states that the suit is filed against the illegal or high-handed and apprehended action on the the part of the respondent. She, therefore, submitted that the learned Judge has committed grave error while coming to the conclusion that the issue involved in both the suits is same and similar in nature. She, therefore, submitted that the learned Judge having exceeded his jurisdiction in allowing the application Exh.18, the impugned order passed by the learned Judge is required to be quashed and set aside by this Court by exercising the powers under Articles 226 and 227 of the Constitution of India.