The trial court has discretion to determine whether to stay proceedings based on the comprehensive nature of the relief sought in a partition suit.

ORAL ORDER

(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

1. Heard the petitioner’s counsel. Though this Court has issued notice against respondents, the respondents have remained unrepresented.

2. The prayer sought for in this writ petition is to issue writ in the nature of certiorari to quash the impugned order passed by the Principal Senior Civil Judge, Gokak, in O.S.No.424/2016 on I.A.No.2 vide Annexure-H also necessary direction to the concerned Court to stay the proceedings in O.S. No.424/2016 till the disposal of O.S.No.133/2016 and such other reliefs as deems fit in the circumstances of the case.

3. The counsel appearing to the petitioner brought to the notice of this Court the copy of the plaint in O.S.No.133/2016, which is annexed along with this petition as Annexure-A, wherein the relief is sought for the relief of declaration to declare that the suit schedule properties are the joint family properties of the family of plaintiff and defendants. The other suit in O.S.No.424/2016 is filed by the sister, who is the defendant No.3 in the suit filed by the petitioner, wherein this petitioner is arrayed as defendant No.3, and the said suit is filed for the relief of partition claiming 1/5^th share in the suit schedule properties by effecting equitable partition by metes and bounds. The petitioner also filed an application in I.A.No.2 before the Trial Court in O.S.No.424/2016, wherein a prayer is sought for the relief of partition to stay further proceedings of the case till the disposal of O.S.No.133/2016.

4. The Trial Court, while passing orders on I.A.No.2 filed in O.S.No.424/2016, having taken note of the grounds urged in the petition and also taking note of the relief sought for in both the suits in O.S.No.133/2016 and also in O.S.No.424/2016, came to the conclusion that the instant suit is comprehensive in nature compared to O.S.No.133/2016 and all the rights of the parties similar in both the suits will be decided in the instant suit and hence the question of staying the suit as prayed by defendant No.3 cannot be considered, and instead of defending his case, defendant No.3 is prolonging the matter one or the other ground, and hence rejected the prayer.

5. The contention of the petitioner’s counsel that, when one suit already filed before the Court is pending, the other suit filed for the relief of partition could not go on unless the previous suit filed by the plaintiff is disposed of. The counsel also vehemently contend that, the petitioner becomes the absolute owner of the suit schedule properties by virtue of an oral partition which took place in the presence of the elders of the family and village and the same is an admitted fact. The suit schedule properties are the joint family properties and it is also an admitted fact that both the parties are the relatives.

6. In other words, the defendants No.1 and 2 are the parents of the plaintiff and defendants No.2 and 4. Unless the earlier suit is disposed of, the other suit filed in O.S.No.424/2016 cannot be disposed of and the very approach of the Trial Court is erroneous.

7. Having heard the petitioner’s counsel and also on perusal of the material on record, particularly Annexure-A, no doubt the parties in both the suits are one and the same except defendant No.2 in subsequent suit in O.S.No.424/2016 and the defendant No.2 in subsequent suit in O.S.No.424/2016 is not a party in the first suit filed by the petitioner in O.S.No.133/2016 and also the relief sought in suit in O.S.No.133/2016 is in respect of two items of the properties which is mentioned in the schedule and relief is also sought that suit properties are the joint family properties of the family of plaintiff and defendants and also defendants be restrained, ousting the plaintiff from joint possession of the suit properties and relief is for declaration and possession, whereas the other suit is also filed by the sister of this petitioner seeking the relief of partition making all sisters, parents as parties to the p