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Bombay High Court

VASANT NARSOBA KAMBLEversusANAND ASHOK GANDHI THROUGH POA RAHUL PRADEEP GANDHI

Disposal
DISPOSED OFF

Holding

The Court held that Section 10 CPC does not limit the stage at which a stay application may be filed and that the trial court erred in rejecting the application outright; consequently, the order was quashed.

Summary

The petitioner, Vasant Narso... Kamble, filed a writ petition challenging the order of the Civil Judge Junior Division, Tuljapur dated 08.08.2025, which rejected his application (Exhibit‑14) under Section 10 of the Code of Civil Procedure seeking a stay of the suit on the ground that the issue was already sub‑judice in a second appeal. The trial court dismissed the stay application on the basis that Section 10 could be invoked only after the trial had commenced. The petitioner argued that the statute does not prescribe a specific stage and that the court must consider the merits of the stay application. The High Court examined the language of Section 10, held that the trial court erred in rejecting the application outright, and quashed the impugned order. The stay application was restored to the suit file and the matter remitted to the trial court for reconsideration, with a direction that the pending stay application should not hinder any interim injunction proceedings.

Issues considered

  • Whether an application for stay of suit under Section 10 of the Code of Civil Procedure can be entertained before the trial of the suit has commenced.
  • Whether the trial court erred in rejecting the stay application outright without considering the merits of the contention that the issue is directly and substantially involved in a pending appeal.

Legislation cited

Subjects

  • Section 10 CPC
  • stay of suit
  • interim injunction
  • jurisdiction
  • civil procedure
  • writ petition
  • trial stage

Judgment

2026:BHC-AUG:12540
                                         (1)                      956-wp-15217-2025.odt



                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                             WRIT PETITION NO. 15217 OF 2025

                                VASANT NARSOBA KAMBLE
                                           VERSUS
                ANAND ASHOK GANDHI THROUGH POA RAHUL PRADEEP
                                           GANDHI
                                                ...
               Mr. P. V. Mandlik, Senior Advocate i/by Mr. Pratap Pravin
               Mandlik, Advocate for the Petitioner.
               Mr. Prasad Joshi h/f Mr. M. A. Shahane, Advocate for Respondent.
                                                ...
                                        CORAM : S. G. CHAPALGAONKAR, J.
                                        DATED : 18th MARCH, 2026.
               P.C.:-

               1.     The present Writ Petition takes exception to order dated

               08.08.2025 passed below Exhibit-14 by Civil Judge Junior Division,

               Tuljapur in Regular Civil Suit No.223/2024.


               2.     The petitioner/original defendant in Regular Civil Suit

               No.223/2024 pending before Civil Judge Junior Division, Tuljapur

               filed application below Exhibit-14 under Section 10 of Code of Civil

               Procedure seeking stay to proceeding in suit on ground that issue

               in suit is directly and substantially subject matter of Second

               Appeal No.128/2023.      The learned Trial Judge rejected said

               application observing that Section 10 would have no application at

               the stage of deciding application for interim injunction and the

               prayer for stay of suit can be germen when trial would began.


               3.     Mr.   Mandlik, learned   Senior   Advocate appearing            for

               petitioner submits that Trial Court could not have outright rejected
                          (2)                        956-wp-15217-2025.odt



application Exhibit-14 without considering merits of contention as

raised in application.


4.    Mr. Joshi, learned Advocate appearing for respondent

justifies impugned order.        He would submit that as can be

discerned from language of Section 10 of Code of Civil Procedure,

application for stay of suit can be entertained only when trial in

suit is began and not while temporary injunction is being

considered before framing of issues in suit.


5.    Having    considered      submissions    advanced    by     learned

Advocates appearing for respective parties and after going through

record tendered into service before this Court, it can be observed

that petitioner has filed application under Section 10 of Code of

Civil Procedure specifically contending that issue involved in

present suit is directly and substantially involved in previously

instituted suit, which is now subject matter of Second Appeal. The

impugned order nowhere considers aforesaid contention. It merely

observes that since trial has not commenced, application for stay of

suit need not be decided and that application for interim injunction

can be considered without impeded by stay application.


6.    The language of Section 10 of the Code of Civil Procedure

does not stipulate stage at which an application for stay of suit can

be made. The only test to be applied is whether matter in issue in
                            (3)                      956-wp-15217-2025.odt



subsequent suit is directly and substantially in issue in a

previously instituted suit. It is open to Court to defer hearing of an

application for stay till framing of issues or commencement of trial.

However, merely because trial has not yet commenced, application

could not have been rejected outright. In that view of matter, this

Court finds that Trial Court has committed error of jurisdiction

while rejecting application Exhibit-14. Hence, following order:

                                  ORDER

a.      Writ Petition is allowed.


b.      The impugned order 08.08.2025 passed below Exhibit-14 by

Civil Judge Junior Division, Tuljapur in Regular Civil Suit

No.223/2024 is quashed and set aside.


c.      The application Exhibit-14 is restored to file of suit and

matter is relegated back to Trial Court for reconsideration in

accordance with law at appropriate stage.


d.      It is made clear that, pendency of application Exhibit-14 for

stay shall not be an impediment for Trial Court to decide

application for interim injunction, if any, filed by parties on its own

merits.



                                      (S. G. CHAPALGAONKAR)
                                               JUDGE
Devendra/March-2026


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