1. Rule with the consent of the learned counsel for the parties made returnable forthwith and heard.

2. The above Petition takes exception to the order dated 6/7/2012 passed by the learned Judge, City Civil Court, Greater Bombay by which order the Notice of Motion No.1305 of 2011 in SC Suit No.2123 of 2008 came to be rejected.

3. By the said Notice of Motion No.1305 of 2011, the Petitioner herein had sought the stay of the suit filed by the Respondent No.1 herein being SC Suit No.2123 of 2008 till the probate proceeding being Testamentary Suit No.33 of 2010 filed by the Petitioner herein is decided.

4. The suit in question has been filed by the Respondent No.1 for an injunction restraining the Defendant No.1 from objecting, obstructing, or interfering with the Plaintiff from managing the affairs of the suit property i.e. plot of land admeasuring 555.18 sq.meters bearing CS No.101/74 of Suparibaug Estage, Plot No.131 of Parel Sewree Division along with a building known as Shanti Niketan thereon at Parmar Guruji Cross Road (Opposite Nare Park), Parel Mumbai – 4000 012. An injunction is also sought to the effect that the Defendant be restrained by a permanent order of injunction from disturbing, obstructing and/or interfering with the Plaintiff’s possession in respect of the suit premises i.e. Float No.B2, admeasuring about 672 sq.fee carpet area, situate on the ground floor of the suit building Shanti Niketan at Parmar Guruji Cross Road (Opposite Nare Park) Parel, Mumbai. In the suit in Paragraph 5 it has been averred that vide Indenture dated 26/09/1963 entered into between Mr. Charandas Meghji Mathuradas, Mr. Dwarkadas Meghji Mathuradas, Mrs. Javerbai Madhavji, Mr. Karsandas Madhavji, Mr. Dwarkadas Mulji and Mr. Dinesh Meghji Mathurdas on the one side, and the Plaintiff’s father Mr. Kashinath D Patange and the Plaintiff’s mother Mrs. Shantabai K Patange on the other side, the said Charandas Meghji Mathurdas and ors sold, transferred and assigned the suit property in favour of the Plaintiff’s father and mother for consideration and upon the terms and conditions as mentioned in the deed of assignment. The said averments in Paragraph 5 of the plaint have not been denied by the Petitioner but in Paragraph 6 of his written statement he has stated that the said statement is substantially true.

5. The father of the Plaintiffs i.e. Kashinath Patange expired on 25/2/1986. The Petitioner herein who is the Defendant to the suit in question applied for probate of the Will which has been allegedly executed by the father in favour of the Defendant No.1 and his sister thereby bequeathing the suit property to the Petitioner and his sister. To the said probate proceedings, it appears that the Respondent No.1 and his mother have given their consent. However, the Respondent No.2 herein who is the step brother of the Petitioner and the Respondent No.1 filed a caveat in the said probate proceedings as a consequence of which the probate proceedings were converted into the Testamentary Suit No.33 of 2010. The instant suit being SC Suit No.2123 of 2009 has been filed prior to filing of the caveat by the Respondent No.2 herein.

6. The Petitioner i.e. the Defendant No.1 to the suit in question, in view of the probate proceedings being pending, filed the instant Notice of Motion No.1305 of 2011 for stay of the suit filed by the Respondent No.1. The said Notice of Motion was founded on the fact that since in the probate proceedings the rights of the Plaintiff as also the Defendant No.1 in respect of the suit property would be adjudicated, that the hearing of the suit being SC Suit No.2123 of 2009 be stayed till the hearing of the Probate Petition No.472 of 1989.

7. In the said Notice of Motion the Respondent No.1 herein filed his reply and in the said reply it has been contended that since the suit property, admittedly, belonged jointly to the Plaintiff’s father Mr. Kashinath Patange and the Plaintiff’s mother Smt. Shantabai Patange, they were