Bombay High Court
Bapu Shankar Patil vs Ajay Vana Marathe (Patil) And ... on 14 July, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2037 OF 2014
Bapu Shankar Patil PETITIONER
Age - 68 years, Occ - Agriculture
R/o Ujjwal Colony, Tongaon, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
(Address in plaint : R/o Yashwant Nagar,
Bhadgaon, Taluka - Bhadgaon, District - Jalgaon)
VERSUS
1. Ajay Vana Marathe (Patil) RESPONDENTS
Age - 51 years, Occ - Labour
R/o Surat, Taluka and District - Surat
2. Sanjay Vana Marathe (Patil)
Age - 42 years, Occ - Labour
R/o Bahiram Galli, Parola,
Taluka - Parola, District - Jalgaon
3. Ratnabai Subhash Patil,
Age - 50 years, Occ - Household and Agriculture
R/o Ganjewada, Bhadgaon,
Taluka - Bhadgaon, District - Jalgaon
4. Raju Vana Marathe (Patil)
Since deceased through his LRs.
4A. Ratnabai Raju Marathe (Patil)
Age - Major, Occ - Labour
4B. Sagar Raju Marathe (Patil)
Age - Major, Occ - Labour
4C. Prashant Raju Marathe (Patil)
Age - Major, Occ - Labour
4A to 4C R/o Toli, Taluka - Parola,
District - Jalgaon
5. Prabhakar Vana Marathe (Patil)
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Since deceased through LRs.
5A. Alkabai Prabhakar Marathe (Patil)
Age - Major, Occ - Household
5B. Rahul Prabhakar Marathe (Patil)
Age - 30 years, Occ - Labour
Both R/o Surat, Taluka and District - Surat
5C. Anita Sanjay Patil,
Age - Major, Occ - Household
R/o Nandurbar,
Taluka and District - Nandurbar
5D. Sunita Vilas Patil,
Age - Major, Occ - Household
R/o Dabali, Taluka - Malegaon
District - Nashik
5E. Vaishali Ranjit Patil,
Age - Major, Occ - Household
R/o Surat,
Taluka and District - Surat
5F. Mayabai Deepak Patil,
Age - Major, Occ - Household
R/o Sakri, Taluka - Sakri
District - Dhule
6. Rikhmabai Vana Marathe (Patil)
Age - 75 years, Occ - Household
R/o Bahiram Galli, Parola,
Taluka - Parola, District - Jalgaon
.......
Mr. Pushkar S. Shendurnikar, Advocate for the petitioner
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 14th JULY, 2016
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard learned
advocate of appearing party finally with consent. No appearance
is caused on behalf of the respondents, though duly served.
2. The petitioner is before this court aggrieved by order dated
20th February, 2014 passed by Civil Judge, Junior Division,
Bhadgaon, upon an application filed by the petitioner pursuant to
section 9A of the Civil Procedure Code, questioning jurisdiction of
the court of civil judge, junior division on the ground of limitation
as well as pecuniary jurisdiction.
3. Learned advocate for the petitioner contends that the
plaintiffs seek cancellation of sale deeds executed in 1987 by
filing suit in 2014 whereas the period of limitation prescribed
under the Limitation Act is of three years from the date when the
facts entitling the plaintiff to have the instrument cancelled or
set aside first become known to him. It is further being
submitted that necessary mutation entries have been taken
immediately after execution of the sale deeds. Here, the
petitioner claims that the sale deeds were executed in the year
1987 and the suit has been instituted in 2014. It is further
contended that the plaintiffs are required to pay court fee upon
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the market value of the suit property at the time of institution
and not on the value at which the property was sold in 1987. In
the circumstances, having regard to Articles 58-59 of the
Limitation Act, 1963 the questions with regard to suit being
within limitation as well as whether the court of civil judge,
junior division would have pecuniary jurisdiction do arise in the
present matter.
4. Learned advocate further states that while a request under
application Exhibit-25, referred to above, had been made for
framing preliminary issue having regard to section 9A
(Maharashtra Amendment) of the Civil Procedure Code, the same
has been turned down under an erroneous impression. Learned
advocate further submits that ad interim injunction is in
operation against the petitioner and the suit proceedings have
further been stayed by this court and it is the plaintiffs who are
reaping benefits from said situation. He, therefore, urges to
decide the petition in right earnest.
5. It is submitted that while ad interim injunction is operating
against the petitioner, learned judge of the trial court has
erroneously decided to go on with decision on temporary
injunction application first, before deciding on application
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Exhibit-25. He submits that the appreciation of sub clause 2 of
section 9A of the Civil Procedure Code, as appearing from the
impugned order is wholly misplaced. He submits that the
question is not being raised about power of the court to grant
interim orders while considering application pursuant to section
9A of the Civil Procedure Code. Such a power has already been
exercised by the trial court and said order is in operation. In the
circumstances, the application ought to have been given proper
treatment, having
ig regard to legislative intent underlying
incorporation of section 9A to the Civil Procedure Code under the
Maharashtra Amendment.
6. Mr. Shendurnikar, learned advocate further purports to rely
on a decision of the Supreme Court in the case of "Foreshore Co-
operative Housing Society Limited V/s Praveen D. Desai (Dead) through Legal
Representatives and Others" reported in (2015) 6 SCC 412, which
according to him throws lot of light on the object underlying
incorporation of section 9A into the Civil Procedure Code under
the Maharashtra Amendment.
7. To aforesaid submissions there is no resistance coming
forward or rather may be it is a calculated strategy to keep away
from court, taking benefit of ad interim order. Learned advocate
further submits that as yet the temporary injunction application
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is pending and is not decided finally.
8. Having regard to aforesaid and since there is no
opposition, I deem it appropriate to allow the writ petition and
quash and set aside the impugned order dated 22 nd February,
2014 passed by Civil Judge, Junior Division, Bhadgaon in Regular
Civil Suit No.1 of 2014 with further direction to decide
application Exhibit-25 in right earnest, giving opportunity to the
parties concerned.
9. Writ petition accordingly stands allowed accordingly. Rule is
made absolute in aforesaid terms.
[SUNIL P. DESHMUKH, J.]
drp/wp2037-14
