Bombay High Court
Chandrashekhar Krishnarao Gadge vs Jayantkumar Ramchandra Dau And ... on 15 September, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6858 OF 2015
Chandrashekhar Krishnarao Gadge
Aged about 59 yrs, Occ. Retired
R/o. 84, Bhausaheb Surve Nagar,
Jaitala Road, Nagpur. ... Petitioner
// VERSUS //
(1) Jayantkumar Ramchandra Dau
Aged about 55 yrs, Occ. Service
R/o. 32, New Verma Layout,
Nagpur, Tah & Distt. Nagpur.
(2) Somaji S/o Mukundrao Zanjal
Aged about 60 yrs, Occu. Business,
R/o 47, Adhyapak Layout, (Hingna
Rd) Nagpur, Tah. & Distt. Nagpur.
(3) Shashikant S/o Bansilal Batra
Aged about 35 yrs, Occ. Business,
R/o Plot No. 135, Satnami Nagar,
Ambedkar Chowk, Central Avenue
Rd. Nagpur, Tah. & Distt. Nagpur. ... Respondents
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Shri R. A. Gupte, Advocate for the petitioner
Shri H. R. Gadhia, Advocate for the respondent no. 1
Shri P. K. Mishra, Advocate for the respondent no. 3
None for the respondent no. 2
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CORAM : PRASANNA B. VARALE, J.
DATE : 15-9-2016.
ORAL ORDER
Rule. Rule made returnable forthwith.
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2. Heard learned counsel for the petitioner and learned
counsel appearing on behalf of the respondent nos. 1 and 3. None for
the respondent no. 2
3. The petitioner is before this Court challenging the order
passed by the learned 7th Joint Civil Judge Junior Division, Nagpur
dated 17-11-2015. The respondent no. 1 in the present petition is the
plaintiff who instituted the suit before the learned Civil Judge Senior
Division, Nagpur for specific performance of contract. The petitioner -
defendant no. 1 in the suit countered the contentions by filing written
statement and also by lodging a counter claim. It is not necessary to
refer to the other aspects in detail. The only controversy is in respect
of an application moved by the petitioner-defendant no. 1 seeking
recasting of issues and the same being rejected by the learned Joint
Civil Judge Junior Division, Nagpur. Perusal of the material placed on
record shows that while lodging the counter claim, the petitioner-
defendant no. 1 prayed for a declaration that the sale deed dated
15-7-2008 was executed illegally by the defendant no. 2 in connivance
with plaintiff and defendant no. 3 and as such is not binding on the
defendant no. 1 - petitioner. The further prayer was for declaring the
sale deed dated 15-7-2008 as illegal, null and void. Third prayer is
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that if the sale deed dated 14-7-2008 is declared as legal sale deed,
the defendant no. 1 - petitioner parted away with the amount of
Rs. 5,11,000/- against the said property. The prayer further includes
the direction to the plaintiff and defendant no. 2 to pay an amount of
Rs. 5,11,000/- to the petitioner - defendant no. 1 as the price of the
said property. Prayer no. 4 is in respect of the interest. Other prayers
are not necessary to be referred to at this stage for consideration of the
petition. The learned Joint Civil Judge Junior Division on the
backdrop of the submissions of the respective parties framed the issues
on 8-3-2013. The petitioner submitted an application for recasting of
issues on 18-11-2013. It was the submission of the petitioner-
defendant no. 1 that the plaintiff has entered into an agreement on
5-8-2006 and therefore 75 days expired on 19-10-2006 and the issue
to that effect should reflect the date as 19-10-2006, however, the date
was appearing as 19-11-2006 in issue no. 1. It was the submission of
the petitioner-defendant no. 1 in the application that the mention of
the date as 19-11-2006 was not in consonance with the record and it
was not the correct date. Thus, the application seeking recasting of
issue in relation to substitution/modification of the date i.e. the date
19-10-2006 be substituted in place of 19-11-2006 and issue be
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recasted by correcting the date. The application was allowed by order
dated 6-2-2014. The petitioner again submitted an application dated
17-10-2015 seeking recasting of issues. Perusal of the copy of said
application which is placed on record shows that it was submitted by
the petitioner that issue no. 9 is mistakenly framed by the Court. It
was submitted in the application that the defendant no. 1 has not any
claim against the defendant no. 3 in the counter claim but the Court
below framed the issue wrongly i.e. issue no. 9. It is submitted in the
application that the issue no. 9 be recasted. It was submitted that the
issue no. 9 be recasted as :
''iz f roknh dz a 1 gs letk iz f roknh dz a 2 ;ka u h fl/n ds y s
dh R;kus iz f roknh da z 3 g;kP;kdMw u fodz h ph la i w . kZ
jDde :- 5]11][email protected]& oknhl fnyh R;kos G s l iz f roknh
da z 1 gs oknh ;ka P ;kdMw u jDde :- 4]11][email protected]& n-lk-
n-'ks - 12 VDds O;kT;klg feG.;kl ik= vkgs dk ?"
The application was opposed by the plaintiff i.e. respondent no. 1
before this Court. It was submitted in opposition that the application
is nothing but an attempt to delay the trial. It was submitted that the
evidence is already commenced. It was further submitted that
recasting of the issue sought for was already covered by other issues
and more particularly, issue nos. 8 and 11. The learned 7 th Joint Civil
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Judge Junior Division, Nagpur, on the grounds, namely, the petitioner
though initially submitted an application seeking recasting of issue
made no attempt to seek recasting of issue no. 9 and again made
application subsequently when there was an opportunity to the
petitioner in his earlier application itself but the application was only
filed seeking modification of the date and no justifiable cause was
shown why the said prayer was not added in the earlier application
and on another ground that the recasting of issue as prayed by the
petitioner is already taken care in the issue nos. 8 and 11, the
application was rejected.
4. Shri Gupte, learned counsel for the petitioner vehemently
submitted that the order impugned in the petition passed by the
learned Joint Civil Judge Junior Division is not sustainable. He
submitted that the earlier application filed for seeking recasting of
issue was for modification of the date. He then submitted that the
learned Court below i.e. Joint Civil Judge Junior Division, Nagpur
erred in observing that the recasting of the issue sought for by the
petitioner is already taking care by issue no. 8. Shri Gupte, learned
counsel by inviting my attention to issue no. 8 submitted that issue
no. 8 only makes a general reference and the entitlement of the
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petitioner as lodged in the counter claim is not taken care by issue
no. 8.
5. Shri Gadhia, learned counsel for the respondent no. 1 and
Shri Mishra, learned counsel for the respondent no. 3 support the
order impugned in the petition. It is the submission of Shri Gadhia,
learned counsel that the subsequent application of the petitioner is
nothing but an attempt to prolong the proceedings. Shri Gadhia,
learned counsel submitted that the suit was instituted in the year
2012 and now the evidence is already commenced and filing of such
an application will result in only protracting the proceedings of the
suit and delay in deciding the suit.
6. On hearing the learned counsel appearing for the
respective parties and on perusal of the material placed on record
along with the petition, I am unable to accept the submission of
Shri Gupte, learned counsel for the petitioner. Though it was
submitted by learned counsel Shri Gupte that the learned Joint Civil
Judge Junior Division erred in observing that recasting of the issue as
sought for by the petitioner is covered by issue nos. 8 and 11, perusal
of the issues, more particularly, issue nos. 8 and 11, I am of the
opinion that though issue no. 8 may be a general issue, issue no. 11
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framed by the learned Joint Civil Judge Junior Division, Nagpur clearly
takes care of the contentions of the petitioner. In the application
seeking recasting of the issue, it was the submission of the petitioner
that the petitioner-defendant no. 1 is entitled to receive an amount of
Rs. 4,11,000/- from the plaintiff if the petitioner successfully proved
that the amount was paid to the plaintiff through the defendant no. 3.
On perusal of the counter claim lodged by the petitioner, it reveals
that prayer no. 3 is to the effect of seeking a direction to the plaintiff
and defendant no. 2 for payment of the amount to the tune of
Rs. 5,11,000/-. Thus even if the issue no. 8 may be a general issue,
issue no. 11 which reads as :
11) Whether the defendant no. 1 is entitled for any relief
as per the counter claim ?
takes care of the prayer no. 3. Learned Joint Civil Judge Junior
Division, Nagpur committed no error while rejecting the application by
observing that the prayer of defendant no. 1 for recasting of issue is
covered by issue no. 11. The petition, thus, being meritless, deserves
to be dismissed and the same is, accordingly, dismissed.
JUDGE
wasnik
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CERTIFICATE
"I certify that this Judgment uploaded is a true and correct
copy of original singed Judgment."
Uploaded by : Shri A. Y. Wasnik, P.A. Uploaded on : 16-9-2016
