Bombay High Court

BASANTILAL CHUNILAL JASABHATI AND OTHERSversusSHANTILAL CHUNILAL JASABHATI AND OTHERS

Disposal: DISPOSED OFF
Bench: SIDDHESHWAR SUNDARRAO THOMBRE

Holding

The trial court must decide the application on its merits and cannot reject it solely on the ground that the issue is pending before a higher court.

Summary

The petitioners challenged a common order dated 9 November 2022 in which the Civil Judge, Junior Division Jamkhed, rejected their applications for enhancement of share on the sole ground that the issue was pending before a Division Bench of the Apex Court in Vineeta Sharma v. Rakesh Sharma. The petitioners argued that the trial court should have examined the applications on their own merits rather than dismissing them merely because of the pending appeal. The High Court held that the trial court erred in rejecting the applications solely on that basis and must decide the matter afresh on its merits. Consequently, the High Court set aside the impugned order and remanded the case to the trial court for fresh consideration. The writ petition was therefore partly allowed.

Issues considered

Whether a trial court can reject an application solely because the issue is referred to a higher court.
Whether the trial court must decide the application on its own merits despite a pending appeal in a related case.

Subjects

writ petition
civil procedure
jurisdiction
remand
share enhancement
appellate reference

Judgment

Dilwale                                       1                   98-WP-12434-22.odt




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                    98 WRIT PETITION NO. 12434 OF 2022

                Basantilal Chunilal Jasabhati And Others
                                  VERSUS
                 Shantilal Chunilal Jasabhati And Others
                                     ...
Advocate for the Petitioners : Mr. Bora Sumeet N.
Advocate for Respondents : Mr. Satyajit S. Bora & Badakh Vishal
Sopanrao
                                     ...

                         CORAM         : SIDDHESHWAR S. THOMBRE, J.
                         DATE          : 27.02.2026

PER COURT :
1.        Heard the learned counsel for the respective parties.

2.        The Petitioners are aggrieved by the common order dated

9.11.2022 passed below Exhibits-55, 71, 73 and 75 by the learned Civil

Judge, Junior Division Jamkhed in FD No. 02/2004, whereby the

applications filed by the petitioners came to be rejected.

3.        The learned counsel for the Petitioners submits that the application

filed by the Petitioners seeking enhancement of share came to be rejected

by the Trial Court only on the ground that the issue was referred to a

Division Bench of the Hon’ble Apex Court in the case of Vineeta Sharma

vs Rakesh Sharma.

4.        In my view, the learned Trial Court ought to have considered the

applications on its own merits instead of rejecting the same solely on the
Dilwale                                       2              98-WP-12434-22.odt


aforesaid ground. Therefore, I am inclined to allow the Writ Petition by

setting aside the impugned order and remanding the matter to the Trial

Court for deciding the applications afresh on their own merits, in

accordance with law.

5.        Hence, the Writ Petition is partly allowed. The common order

dated 9.11.2022 passed below Exhibits-55, 71, 73 and 75 by the learned

Civil Judge, Junior Division Jamkhed in FD No. 02/2004 is quashed and

ser aside. The matter is remanded to the Trial Court to decide the issue a

fresh as per the existing position of Law.



                                             [ SIDDHESHWAR S. THOMBRE ]
                                                       JUDGE

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