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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION NO.90/2017
APPLICANT : Smt. Pallavi Vilas Khare
PETITIONER :- Aged about 64 years, Occ - Advocate,
ORI. PLAINTIFF R/o 'SHOBHAN', Plot No.36, Shankar Nagar,
On R.A. Nagpur.
...V E R S U S...
RESPONDENTS : 1) Smt. Shashikala Shamrao Band,
ORI. DEFENDANTS Aged about 81 years, Occ. - Household.
On R.A.
2) Mr. Nilay Shamrao Band,
aged about 54 years, Occ. - Cultivation.
3) Sau. Rohini w/o Nilay Band,
aged about 52 years, Occ. Cultivation.
1 to 3 all r/o Shriram Apartments,
Plot No.12, Jeevan Chhaya Nagar, Near Nagpur
Nagrik Bank, Pratap Nagar, Ring Road,
Nagpur - 22.
4) Mahesh s/o Prabhakar Dolas,
Aged about 52 years, Occ. Business,
R/o Plot No.38, Kannamwar Nagar,
Wardha Road, Nagpur.
5) M/s Kb Associates, A Partnership Firm
Having its office at Shriram Apartment,
Plot No.12, Jeevan Chhaya Nagar, Near
Nagpur Nagrik Bank, Pratap Nagar Ring Road,
Nagpur - 22.
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Shri Rohit Joshi, Advocate for applicant
None for the respondents
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CORAM : ARUN D. UPADHYE, J.
DATED : 14/12/2017 ORAL JUDGMENT
1. Heard learned Counsel for the applicant. None appears for the respondents, though served. Rule. Rule made returnable forthwith. The civil revision application is heard finally with the consent of the learned Counsel for the applicant.
2. By this civil revision application, the applicant has prayed to quash and set aside the order dated 3/3/2017 passed by the 6 th Joint Civil Judge Junior Division, Nagpur below Exh.14 in Regular Civil Suit No.1402/2012.
3. The brief facts of the case are as under : -
The applicant/plaintiff has filed suit for specific performance of contract as well as declaration and injunction. The defendants appeared in the suit and filed their written statement on 01/02/2011.
4. The applicant has filed application under Order XII Rule 6 of the Code of Civil Procedure praying for passing of judgment on admission and to decree the suit. The said application is filed on 10/4/2012. In the said application, it is contended that the suit is filed for specific performance on the basis of agreement of sale dated 27/12/2001 entered into between the plaintiff and defendants. In the application, it is averred ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 02:04:59 ::: cra90.17.odt 3 that the plaintiff has categorically averred in the plaint that the entire sale consideration is already paid by her to the defendants. She has also averred that she is in settled possession of the suit property. It is contended that the defendants have filed written statement on 1/2/2011 and material pleadings of the plaintiff have been admitted by the defendants. The only defence, the defendants have raised, is that the sale-deed in respect of the suit property cannot be executed for want of non-agricultural assessment of the suit property and other plots. The plaintiff thus claimed that this is a fit case for exercising the power vested under Order XII Rule 6 of the Code of Civil Procedure and prayed for passing of the judgment under the said provision.
5. It appears that the defendants have not filed say to the said application. After hearing the parties, the learned 6 th Joint Civil Judge Junior Division, Nagpur passed the impugned order and rejected the prayer of the plaintiff.
6. I have heard Shri Rohit Joshi, the learned Counsel for the applicant. He submitted that the defendants have admitted the claim of the plaintiff by filing their written statement. The learned trial Court could have passed conditional decree on the application filed by the plaintiff. The impugned order is unsustainable in law and the same be set aside by allowing the civil revision application. ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 02:04:59 :::
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7. After considering the submission of the learned Counsel for the applicant and after going through the impugned order as well as the documents placed on record, I am of the view that the impugned order dated 3/3/2017 passed by the learned 6 th Joint Civil Judge Junior Division, Nagpur below Exh.14 in Regular Civil Suit No.1402/2012 does not require any interference of this Court. It is to be noted that as per Order XII Rule 6 of the Code of Civil Procedure, the discretionary powers are given to the Court to pass the decree on the basis of averments made in the plaint and admission given by the defendant in written statement. The defendants have not disputed the entire plaint, but partly disputed the plaint in paragraph no.5 to 15 of their written statement. Not only that by special pleadings in the written statement they have given the details in respect to plaint filed by the plaintiff and also claimed compensatory costs of Rs.25,000/- from the plaintiff. It is also observed in the order that already issues are framed vide Exh.13 on 21/11/2011, however, the plaintiff has not adduced her evidence after framing the issues, for more than five years. If that is so, the application (Exh.14) filed by the plaintiff under Order XII Rule 6 of the Code of Civil Procedure was rightly rejected by the learned 6 th Joint Civil Judge Junior Division, Nagpur. The plaintiff should have adduced the evidence on the issues framed in the matter. Instead of that the present application is filed for ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 02:04:59 ::: cra90.17.odt 5 passing the judgment. The matter is of the year 2012. The learned trial Judge has rightly observed that it is nothing but to delay the proceedings and rejected the same.
8. No interference of this Court is called for in the impugned order. The civil revision application is devoid of any merit and liable to be dismissed and accordingly the same is dismissed. Rule stand discharged. No costs.
JUDGE Wadkar ::: Uploaded on - 15/12/2017 ::: Downloaded on - 16/12/2017 02:04:59 :::