Bombay High Court
Brijkishor S/O Nandkishoreji ... vs Gopal S/O Maniklal Dhiran And ... on 7 April, 2016
Bench: S.B. Shukre
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 5796 OF 2014
Brijkishore s/o Nandkishoreji Jawandhiya,
aged about 65 years, Jawandhiya Niwas,
Modi Lane No.1,
Sitabuldi, Nagpur. .... PETITIONER.
VERSUS
1. Gopal s/o Maniklal Dhiran,
aged about 58 years, Business,
Sneh Nagar, Sewagram Road,
Wardha.
2. Jugalkishor s/o Maniklal Dhiran,
aged about 54 years, Occupation : Service,
601, Shriman Palace, Dhantoli, Nagpur.
3. Smt. Shakuntala Kalyansing Mohta,
aged about 64 years, Housewife,
Munniappa Street, Chennai (T.N).
4. Smt. Umadevi wd/o Ashok Dhiran,
aged about 55 years.
5. Mitesh s/o Ashok Dhiran
aged about 36 years, Occupation : Service.
6. Jai s/o Ashok Dhiran,
aged about 34 years, Occupation : Service,
Nos. 4 to 6, r/o D-9, Suyog Nagar,
S.B. Road, Pune-16.
7. Smt. Dipti w/o Arun Mundada
aged about 32 years, Household,
Khaparde Bagicha, Amravati
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(Nos. 1 to 7 - Ori. Plffs. And
Defts. 1 to 7 in Counter Claim)
8. Agrawal Agencies,
by Ashwin Suresh Agrawal,
aged 35 years, Chartered Accountant.
Ground Floor. Opp. Buty Building,
Main Road, Sitabuldi, Nagpur.
9. Ashok Agrawal,
aged about 66 years,
c/o Pharmadia Laboratories,
Opp. Buty Building,
Main Road, Sitabuldi, Nagpur.
10. Sanjay Bholanath Ghate,
aged about 40 years, Business,
1st Floor, Opp. Buty Building,
Main Road, Sitabuldi, Nagpur.
11. Arun s/o Dharsidas Sawal,
aged about 49 years, Business,
r/o Besides Anand Bakery,
Main Road, Sitabuldi, Nagpur.
12. Rajesh Sangal,
aged 56 years, Business,
c/o R.K. Electronics,
Dhanwate chambers, Sitabuldi, Nagpur.
13. Babulal Tarachandji Sawal,
aged about 70 years, Retired
c/o Yogesh B. Sawal, Advocate,
2nd Floor, Opp. Buty Building,
Main Road, Sitabuldi, Nagpur.
14. Narayan Motilal Rathi,
aged about 66 years, Business,
c/o Namkeen Centre,
Opp. Buty Building,
Main Road, Sitabuldi, Nagpur.
15. Shyam Rathi,
aged about 58 years, Business,
c/o Tushar Enterprises,
Opp. Buty Building,
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Main Road, Sitabuldi, Nagpur.
16. Prakash Thakkar,
aged about 55 years, Advocate,
1st Floor, Opp. Buty Building,
Main Road, Sitabuldi, Nagpur.
17. Jitendra C. Dhruv,
aged about 56 years, Advocate,
1st Floor, Opp. Buty Building,
Main Road, Sitabuldi, Nagpur.
18. Dr. Jaikumar Dixit,
Nandini Apartments, 1st Floor,
Near Gaeden, Congress Nagar,
Nagpur.
19. Om Collections,
By Prop./Partner,
near Fattechand Murlidhar Shop,
Mahatma Gandhi Road (Main Road),
Sitabuldi, Nagpur.
(Nos. 8 to 19 are Deft. Nos. 8 to 19 in
Counter Claim) .... RESPONDENTS.
....
Shri B.N. Mohta Advocate for the Petitioner.
Shri M.R. Johrapurkar Advocate for Respondents 1 to 7.
.....
CORAM : S.B. SHUKRE, J.
DATED : 07.04.2016.
ORAL JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally
by consent of parties.
2. Although learned counsel for respondents 1 to 7, the
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original plaintiffs, submits that if the impugned order in this
petition which is of 04.9.2014 passed below Ex.1 is to be
interfered with, then the order passed on 04.9.2014 rejecting the
application of the respondents vide Ex.28 for exclusion of counter
claim should also be quashed and set aside.
3. I find that the order passed below Ex.1 having been
rendered without hearing the petitioner as well as the alleged
tenants, i.e. original defendants 8 to 19 in the counter claim,
would have to be considered de hors the order passed below
Ex.28. The order passed below Ex.1 on 04.9.2014, in my view,
could not have been passed until the defence of the defendants as
regards their status in the suit property and the rent to be
paid/deposited by them was taken on record. The reason being
that the petitioner, original defendant, has made a counter claim
wherein the petitioner is contending that his maternal grand
father was one of the co-owners of the suit property and,
therefore, even he is having a share in the property and as such in
the rent due from the tenants in the property, the petitioner too
would have a share. As such, I find that the impugned order
cannot be sustained in the eye of law, and it deserves to be
quashed and set aside.
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4. In the result, writ petition is allowed and the
impugned order dated 04.9.2014 passed below Ex.1 is hereby
quashed and set aside. The matter is remanded back to the trial
Court for deciding the issue as to whether or not original
defendants 8 to 19 in the counter claim can be deleted. The
decision may be taken within 15 days from the date of order. The
trial Court shall consider expeditious disposal of the suit.
Rule is made absolute in above terms. No cost.
JUDGE
/TA/
