Amrit Kundanmal Gugale vs Lalabee Mard Shaikh Aadam Died ...
2016 Latest Caselaw 1058 Bom

                                                                CRA 231/2015
                                           1




                                                                         
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                 
                   CIVIL REVISION APPLICATION NO. 231 OF 2015

              Amrit Kundanmal Gugale,
              Age about 67 years, Occu. Advocate,
              R/o. 2452/53, Telikhunt,




                                                
              Ahmednagar.                      ....Petitioner.
                                               (Ori. Deft. No. 32)

                      Versus




                                      
     1)       Lalabee Mard Shaikh Aadam
                             
              (Deceased) Through

     1A)      Shaikh Aslam Babasaheb,
                            
              Age about 48 years, Occu. Business,

     1B)      Shaikh Aasif Babasaheb,
              Age about 46 years, Occu. Business,
      

     1C)      Shaikh Ashpak Iqbal,
              Age about 44 years, Occu. Business,
   



              All R/o. 628, Near Satpir,
              Tophkhana, Ahmednagar.             ....Respondents.
                                                   (Ori. Plaintiffs)





     Mr. V.D. Sapkal, Advocate for petitioner.
     Mr. A.D. Kasliwal, Advocate for respondent No. 1A to 1C.





                                      CORAM : T.V. NALAWADE, J.
                                      DATED : 31st March, 2016.

     JUDGMENT :

1) Revision is admitted. Notice after admission made

returnable forthwith. By consent, heard both the sides for final

disposal.

CRA 231/2015

2) The revision is filed against the order made on Exh.

188 by the learned 3rd Jt. Civil Judge, Senior Division,

Ahmednagar in Special Civil Suit No. 62/2003. The application

was filed by present petitioner for rejection of plaint under the

provision of Order 7, Rule 11 of Civil Procedure Code (hereinafter

referred to as 'C.P.C.' for short) and the said application is

rejected by the Trial Court.

3) Special Civil Suit No. 62/2003 is filed by the

successors of Smt. Lalabee Shaikh Aadam, who are Shaikh

Aslam, Shaikh Aasif and Shaikh Ashpak. It is mainly against

defendant - Nashik Diocesan Council Public Trust, registered

public trust. Other defendants including the present petitioner

are the purchasers of some portion of the suit property from this

trust and so, they are made parties. Relief of declaration is

claimed that sale deed executed in favour of defendant Nos. 1 to

21 on 20.5.1993 is sham sale deed and it is not binding on

plaintiffs. Relief of declaration is claimed that plaintiffs are

owners of Survey No. 166 old, which is given final Plot No. 130

situated within limits of Local Body of Ahmednagar and

admeasuring 8 Acres 13 Gunta. Present petitioner came to be

added as defendant No. 32 in the suit subsequent to the filing of

CRA 231/2015

the suit and on the basis of application given by plaintiffs for

amendment of plaint and for permission to add present

petitioner as defendant. This Court in Writ Petition No.

9267/2013 allowed the plaintiffs to add present petitioner as a

party defendant by allowing the amendment, but to the

application and to the writ proceeding, present petitioner was

not party.

     4)               Present
                              ig   petitioner       filed   application         under       the
                            

provision of Order 7, Rule 11 of C.P.C. and contended that in

Regular Civil Suit No. 220/2004, which was filed by present

petitioner against the plaintiffs of Special Civil Suit No. 62/2003,

compromise had taken place and in view of the compromise,

consent decree is made in favour of petitioner. It is contended in

the application at Exh. 188 filed in the Trial Court that plaintiffs

of present suit had abandoned their claim in respect of the

property sold to petitioner under sale deed dated 26.4.1995 and

so, the suit is not tenable as against the present petitioner and

plaint needs to be rejected to that extent.

5) The Trial Court has rejected the application by

holding that present petitioner was joined as party defendant in

the suit as per the order of High Court and so, this order is

CRA 231/2015

binding on the present petitioner and the Trial Court.

6) In the present proceeding, copy of plaint of Regular

Civil Suit No. 220/2004, which was filed in the Court of Civil

Judge, Senior Division is produced and it shows that the suit was

filed in respect of some portion of revenue Survey No. 166 [final

Plot No. 130] and relief of declaration was claimed that the

plaintiff, present petitioner is owner of the said portion

purchased under the sale deed registered on 26.4.1995 and the

relief of injunction was also claimed in respect of the said

portion. Copy of compromise decree is also produced on the

record and it shows that in view of the compromise pursis filed

at Exh. 102, the suit was decreed. It was the case of plaintiff that

his vendor had purchased the said portion under sale deed

dated 20.5.1993 from Nashik Diocesan Council Public Trust,

defendant No. 1 of the present suit. Declaration is given by the

Civil Court in Regular Civil Suit No. 220/2004 on the basis of

compromise that the plaintiff, present petitioner has become

owner in view of the sale deed of 1995. The said suit was filed

against Shaikh Aslam, Shaikh Asif and Shaikh Ashpak, the

plaintiffs of the present suit. Compromise decree was given on

15.6.2009. It appears that in Special Civil Suit No. 62/2003 also

pursis was filed at Exh. 139 and prayer was made to delete the

CRA 231/2015

portion of 14.29 R. sold to Amrit, present petitioner and so, no

relief is claimed in respect of that portion. On 15.6.2009 itself

this application was allowed and plaintiffs were allowed to carry

out amendment accordingly. It appears that subsequently, under

Exh. 156 prayer was made to add present petitioner as a party

defendant in Special Civil Suit No. 62/2003 and then this Court

allowed the plaintiff to make amendment. (Writ Petition No.

9267/2013).

7) It is not disputed that the consent decree made in

Regular Civil Suit No. 220/2004 in favour of present petitioner

was never challenged. Even in Special Civil Suit No. 62/2003

amendment is not made to claim relief in respect of said consent

decree. On the contrary, by filing pursis, the portion shown to be

sold to present petitioner was deleted by plaintiffs from the

present suit. The relief clause of Special Civil Suit No. 62/2003

shows that the relief claimed is as against defendant Nos. 1 to

21. Even if, it is presumed that this Court had given permission

to present plaintiffs to make amendment, that amendment is

only in the body of the plaint and no relief as such is claimed

which could have been claimed consequential to the

amendment allowed by this Court. Thus, no relief at all is

claimed against present petitioner in the present suit. These

CRA 231/2015

circumstances are relevant. This Court holds that the Trial Court

has committed error in rejecting the application filed by present

petitioner under the provision of Order 7, Rule 11 of C.P.C. This

Court holds that, that part of the plaint needs to be rejected.

8) In the result, Civil Revision Application is allowed.

The order made by the learned Civil Judge, Senior Division

Ahmednagar on Exh. 188 in Special Civil Suit No. 62/2003 filed

by the petitioner is hereby set aside. The said application is

allowed and part of the plaint in respect of present petitioner

stands rejected.

[ T.V. NALAWADE, J. ]

ssc/