1. The petition is directed against the order dated 5/7/2010 passed by 13th Additional Senior Civil Judge, Vadodara whereby the learned Trial court has rejected application (Exh.20) preferred by present petitioners under Section-10 of the Code of Civil Procedure.
2. It is the case of the petitioners that two suits between the same parties are pending before the learned Trial Court at Vadodara. The petitioners, on the ground that the suit filed by the petitioners is prior in time filed an application under Section-10 of the Code of Civil Procedure requesting the Court to stay the suit filed by present respondents. The said application has been rejected by the learned Trial Court on the ground that though the parties in two suits are common, actually the relief prayed for in both the suits and the nature and scope of the relief prayed for are of different nature and also the fact that the cause of action in light of which the suits are filed, is also different.
3. Taking into consideration the said two major reasons, the learned Trial Court disallowed the application preferred by present petitioners under Section-10 of the Code of Civil Procedure.
4. Aggrieved by the said order, the petitioners have preferred present petition.
5. Learned advocate Mr. Mulia has appeared for the petitioners. He submitted that as per the order dated 12/5/2009 passed by the High Court in Appeal From Order No.2 of 2009, the suit filed by present respondents is directed to be decided by 31/12/2010 by the Trial Court. He expressed an apprehension that if the suit of present respondents is, in view of the said order dated 12/5/2009 passed in Appeal From Order No.2 of 2009, disposed of earlier then there is likelihood that his suit may be rendered infructuous. Having regard to the said fact, learned advocate Mr.Mulia submitted that in such facts of the case the learned Trial Court either ought to have allowed the application preferred under Section-10 of the Code or at least the two suits ought to have been directed to be heard together or simultaneously.
6. Having regard to the facts of the case and also considering the relief prayed for in the two suits i.e. Special Civil Suit No.45 of 2008 (filed by present petitioners) and Special Civil Suit No.61 of 2010 (filed by present respondents), any fault cannot be found with the finding recorded by the learned Trial Court that the cause of action on the basis of which these two suits are filed and the nature and scope of the relief prayed for in both the suits are materially different and that therefore, the application under Section-10 cannot be entertained.
6.1) In such circumstances, the submission of the learned advocate for the petitioner that so as to ensure that by disposal of the subsequent civil suit being Special Civil Suit No.61 of 2010 (filed by present respondents) in view of the order passed by the High Court in Appeal From Order No.2 of 2009 one suit may not be rendered infructuous at least the two suits are required to be heard and disposed of together, deserves to be taken in account.
7. Considering the said request, the petition is disposed of with the observations that it would be open to the petitioners to make further application requesting the Court to hear and decide the two suits together so that the suit filed by the petitioners-plaintiffs being Special Civil Suit No.45 of 2008 may not be rendered infructuous. As and when such application is made by the petitioners, the learned Trial Court shall consider the same in accordance with law and pass appropriate orders taking into account the anxiety of the petitioners.
8. With the aforesaid observation and clarification, the petition stands disposed of.
(K.M.THAKER, J.) (ila) Top