Bombay High Court
RASHID USMAN SHAIKHversusNAUSHAD FAKARODDIN SHAIKH AND ORS.
- Disposal
- Dismissed
Holding
The later suit cannot be stayed under Section 10 CPC and the earlier suit does not bar the later suit on res judicata grounds.
Summary
The petitioner, Rashid Usman Shaikh, challenged an order that stayed his civil suit (No. 454/2022) on the ground that an earlier suit (No. 404/2016) involving some of the same parties dealt with the same subject matter. The petitioner argued that the earlier suit should stay the later suit and that any decree in the earlier suit would operate as res judicata. The court examined the pleadings and found that while some parties overlapped, the reliefs sought were distinct and the earlier suit did not seek a declaration of title concerning the later suit’s sale deed. Consequently, the earlier suit could not bar the later suit under Section 10 of the CPC nor invoke res judicata. The court held that the order staying the later suit was unreasonable, dismissed the writ petition, and allowed the parties to seek clubbing of the suits under Section 24 of the CPC.
Issues considered
- Whether Section 10 of the Code of Civil Procedure applies to stay the later suit pending the earlier suit.
- Whether the decree in the earlier suit would operate as res judicata against the later suit.
- Whether the parties and reliefs in the two suits are sufficiently distinct to preclude a stay.
- Whether the suits can be clubbed under Section 24 of the Code of Civil Procedure.
Legislation cited
- Code of Civil Procedure, 1908 — s. 10, 24
Subjects
- res judicata
- Section 10 CPC
- stay of suit
- clubbing of suits
- civil procedure
- land title dispute
- encroachment
Judgment
88 WP 1385 OF 2026.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
88 WRIT PETITION NO. 1385 OF 2026
RASHID USMAN SHAIKH
VERSUS
NAUSHAD FAKARODDIN SHAIKH AND ORS.
...
Advocate for Petitioner : Mr. Prasad Pradeep Kulkarni a/w Adv. Nakul V.
Shukla, a/w Adv. Amol Kanaki, a/w Adv. Amol Deshinge
Advocate for Respondent No. 1 : Mr. R. S. Alange a/w Adv. V. S. Kupawade
A.G.P. for Respondent/State : Mr. Santosh A. Jadhav, Govt. Counsel, Panel ‘B’
...
CORAM : SHAILESH P. BRAHME, J.
DATE : 17.08.2026
PER COURT :
Heard both sides.
2. Being aggrieved by order dated 17.12.2025 passed below Exh. 46 in
Regular Civil Suit No. 454/2022 present petition is filed.
3. Learned counsel for the petitioner submits that subsequently filed
Regular Civil Suit No. 454/2022 should have been stayed in view of
pendency of Regular Civil Suit No. 404/2016. The issue involved is
substantially the same including parties and the subject matter. It is
contended that the Trial Court adopted hyper-technical approach recording
that parties and relief are different. It is submitted that if the earlier filed
suit is decreed, subsequently filed suit would become redundant and no
relief could be granted. It is further submitted that the decision rendered in
first suit would operate res judicata in the subsequently filed suit.
4. Learned counsel for the respondent supports the impugned order. It is
submitted that the subject matter, parties and reliefs are different and
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Section 10 of CPC can have no application.
5. I have considered rival submissions of the parties. I have gone
through plaints of Regular Civil Suit No. 404/2016 and 454/2022. It is
evident that the parties and the reliefs in both suits are distinct, albeit couple
of parties are common. The earlier suit is pending at the stage of recoding of
evidence before different Court.
6. The controversy in both suits can be sum up as follows:
(a) Fakroddin was the owner, who was plaintiff in
earlier suit and he is substituted by his heirs.
(b) The plaintiff Fakroddin had sold 1H 60R land of
Gat No. 992/1 on 12.06.2007 to one Mrs. Nirmala Chavan,
defendant no. 4 therein.
(c) The defendants in earlier suit in collusion
procured N.A. order on 15.12.2007 and layout sanction on
21.07.2008, which are stated to be bad in law.
(d) Mrs. Nirmala Chavan, sold 4.51 Are of land,
which she had received from Fakroddin vide sale-deed
dated 08.10.2020 to Naushad Shaikh.
(e) Naushad, is the plaintiff in subsequently filed suit
bearing Regular Civil Suit No. 454/2022
(f) Naushad claims encroachment over the land
purchased by him and seeks declaration of his title in later
suit.
(g) In both of the suits the sale transactions are not
challenged.
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7. I have gone through the impugned order passed by the learned Judge.
The parties are distinct. The subject matter in the subsequently filed suit is
forming part of the subject matter in earlier filed suit. The plaintiff in earlier
filed suit did not seek any declaration in respect of sale-deed dated
12.06.2007. In the absence of said relief, even if he succeeds in the suit, the
title of vendor Mrs. Nirmala Chavan would remain unaffected. If the title
remains unaffected, then the decision of a previous suit would not operate
as res judicata for subsequently filed suit.
8. The impugned order is plausible and reasonable. The subsequently
filed suit cannot be stayed under Section 10 of the Code of Civil Procedure.
I do not find any merit in the writ petition. However, it cannot be said that
there is absolutely no nexus of previously filed suit and subsequently filed
suit. It would be appropriate for the parties to solicit clubbing of the suit.
9. The writ petition is dismissed. However, the parties shall have liberty
to seek appropriate orders for clubbing of the Regular Civil Suit No.
404/2016 and 454/2022 by taking recourse to Section 24 of the Code of
Civil Procedure.
( SHAILESH P. BRAHME, J.)
mkd/-
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