Bombay High Court
VASANT NARSOBA KAMBLEversusANAND ASHOK GANDHI THROUGH POA RAHUL PRADEEP GANDHI
- Disposal
- DISPOSED OFF
- Bench
- S G CHAPALGAONKAR
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
- Code of Civil Procedure, 1908 — s. 10
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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