Bombay High Court
Preeti Jairaj Rathod @ Preeti ... vs Rajendra Kasturchand Rathod on 17 March, 2016
Bench: S.P. Deshmukh
1 WP-12465.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 12465 OF 2015
1. Kum. Preeti d/o Jairaj Rathod,
@ Preeti w/o Neeraj Rathod,
Age: 39 yrs, occ.: household.
2. Shakti s/o Jairaj Rathod,
Age: 37 yrs, occ: Business,
3. Amit S/o Jairaj Rathod,
Age: 35 yrs, occ: business,
4.
Sumit s/o Jairaj Ratod,
Age: 32 yrs, occ: education,
all residents of Vazirabad, Nanded. ...PETITIONERS
(original plaintiffs )
versus
Rajendra Kasturchand Rathod,
Age: 54 yrs. Occ: Business,
R/o : Chowk Bazar, Nanded.
District Nanded. ...RESPONDENT
(Original defendant )
.....
Mr. A.A. Mukhedkar, Advocate for petitioners
Mr. G.D. Raje, Advocate for respondent
.....
CORAM : SUNIL P. DESHMUKH, J.
DATED : 17 th MARCH, 2016.
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith and with consent of learned
advocates for parties heard, finally.
2. Present petition has been moved by original plaintiffs against
judgment and order dated 18-02-2014 in miscellaneous civil appeal
No. 63 of 2012 passed by District Judge - 3, Nanded confirming the
2 WP-12465.15
order dated 13-04-2012 on Exhibit-5 in regular civil suit no. 296 of
2012 (new) (special civil Suit No. 215 of 2011(old)) passed by joint
civil judge, junior division, Nanded, whereunder their application for
temporary injunction has been rejected.
3. Briefly stated background of the case appears to be that, Jairaj
and Rajendra were real brothers. Plaintiffs are descendants of Jairaj.
There was litigation between the parties, which had culminated into a
compromise in regular civil appeal No. 62 of 2006. As per the terms of
compromise, amount of Rs.26,00,000/- had been agreed to be paid to
present petitioners. From the agreed amount, an amount of
Rs. 3,00,000/- was to be paid at the time of execution of compromise
deed and rest of the amount of Rs. 23,00,000/- was to be paid through
cheques and post dated cheques were accordingly issued in advance in
favour of the present petitioners. It was further agreed term that
amount as contained in the cheques would be paid in cash and upon
receiving the same, a receipt to that effect would be executed by
recipients and cheques would be returned to the respondent -
defendant - uncle. It appears that after presentation of said cheques
for encashment in the bank, those were dishonoured.
4. It appears that since allegedly terms of the compromise were not
adhered to and the cheques were returned dishonoured, suit has been
filed by the present petitioners seeking declaration and perpetual
injunction and further declaration that the compromise decree pursuant
to compromise deed, passed in regular civil appeal no. 62 of 2006 is
ineffective, illegal and not binding on them. Along with the suit, the
3 WP-12465.15
petitioners had also filed an application for temporary injunction
seeking restraint on defendant from causing any sort of interference
and obstruction in their peaceful possession over the suit property and
further injunction seeking restraint on defendant from transferring,
alienating, or creating third party interest over the suit property.
5. The trial as well as appellate courts having regard to the terms of
compromise considered that possession cannot be effectively said with
the petitioners - plaintiffs and as such declined to grant injunction in so
far as claim of the plaintiffs in respect of possession is concerned. So
far as restraint on defendant from alienating, transferring and creating
third party interest over the suit property is concerned, the same had
been refused by the trial court observing that no documents had been
placed on record by the plaintiffs showing their possession over the suit
property.
6. Perusal of the judgment and order of the appellate court shows
that it does not contain even a whisper and/or that the appellate court
has dealt with this aspect of the matter. It further transpires that
subsequently there is contention that some sort of publication putting
the suit property for sale on preparation of layout. Learned counsel for
respondent, however, resists said contention.
7. Having regard to totality of the circumstances, it appears that
ends of justice can be met with by equitable order that respondent-
defendant shall not be allowed to deal with, transfer, alienate and
create third party interest or carry out such activity as would be
4 WP-12465.15
detrimental to the interest of the petitioners.
8. As such, writ petition is allowed to aforesaid extent, hence
order:-
Parties during pendency of regular civil suit no. 296 of
2012 pending on the file of joint civil judge, junior
division, Nanded shall not alienate, transfer or create any
third party interest over the suit property or shall not
deal with it in a such way so that the rights of the
respective parties would be affected.
9. At this stage, learned counsel for the parties states that affidavit
of chief-in-examination of plaintiffs has been already submitted and the
suit deserves expeditious disposal. In view of the same, joint civil
judge, junior division, Nanded, shall dispose of regular civil suit no. 296
of 2012 as expeditiously as possible, preferably within a period of six
months from the date of receipt of writ of this order. It is expected
that parties would co-operate for expeditious disposal of suit.
10. Writ petition stands disposed of accordingly. Rule is made
absolute in aforesaid terms.
Sd/-
( SUNIL P. DESHMUKH, J. )
MTK
