Ganesh S/O. Vitthaldasji ... vs Ansulkumar S/O. Deokinandan ...
2017 Latest Caselaw 1637 Bom

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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                               NAGPUR BENCH, NAGPUR.


                               WRIT PETITION NO. 808 OF 2016


 Ganesh S/o. Vitthaldasji Chandak,
 Aged about 56 years, Occ.-Agriculturist, 
 Resident of Arvi, Tah. Arvi, Dist. Wardha. 
                                                                           ....  PETITIONER.


                                        //  VERSUS //


 1. Ansulkumar S/o. Deokinandan Narnoli,
    Aged 45 years, Occ. Cultivator and 
    Business. 

 2. Sau Shakuntala W/o. Deokinandan Narnoli,
    Aged 70 years, Occ. Cultivator and Business,

      Both Residents of Magan Sangrahalaya Chowk,
      Bachelor Road, Wardha, Tah.and District : Wardha. 

 3. Sau. Nita Arvind Patil, Adult,
    R/o. Plot No.4, Anand Hind Society, 
    Chatrapati Nagar, Nagpur.  

 4. Sau. Sangita Naval Agrawal, Adult,
    R/o. MHADA Building No.6, Andheri 
    (West), Mumbai - 25. 

 5. Aditya Asulkumar Narnoli,
    Aged about 19 years, 
    C/o. Asulkumar S/o.Deokinandan
    Narnoli, R/o. Wardha, Tah. & Distt. 
    Wardha. 

 6. Amartya Asulkumar Narnoli,
    Aged about 15 years, 
    No.6 Minor, through Guardian Father
    Asulkumar S/o.Deokinandan
    Narnoli, Aged 36 years, R/o. Wardha, 
    Tah. & Distt. Wardha. 



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 7. Sau. Kavita Omprakash Goya,
    Aged : Adult, Occu.: Household, 
    Residing near Tower, Ujjain (M.P.)

                                                          .... RESPONDENTS
                                                                        . 
  ___________________________________________________________________
 Shri A.Deshpande, Advocate for Petitioner. 
 Shri J.R.Kidilay, Advocate for Respondent Nos.1 2 and 5.  
 Shri S.V.Sohoni, Advocate for Respondent Nos.3, 4 & 7.
 ___________________________________________________________________

                              CORAM : Z.A.HAQ, J.

DATED : APRIL 11, 2017.

ORAL JUDGMENT :

1. Heard.

2. RULE. Rule made returnable forthwith.

3. The original plaintiff has challenged the order passed by the

trial Court by which application (Exh.No.114) filed by the defendant No.1

directing that the agreement of sale dated 8th February, 2006 be impounded

is allowed. The application (Exh.No.114) was filed by the defendant No.1

referring the averment in paragraph No.3 of the plaint that possession of the

suit property was handed over to the plaintiff on the date of agreement of

sale i.e. on 8th February, 2006. The learned trial Judge accepted the

submission made on behalf of the defendant No.1 and relying on the

averments made in the plaint that the plaintiff was given possession of the

suit property at the time of the agreement, has passed the impugned order.

Judgment 3 wp808.16.odt

4. After the impugned order is passed, the plaintiff has filed an

application (Exh.No.121) under Order VI Rule 17 of the Code of Civil

Procedure seeking permission to amend the plaint. By the proposed

amendment, the plaintiff seeks to delete the averments made in the plaint

that he was given possession of the suit property at the time of the

agreement. The plaintiff further seeks to amend the prayer clause to seek the

decree for possession of the suit property. This application (Exh.No.121) is

pending before the trial Court for consideration.

5. Considering the facts of the case, in my view, the contention of

the defendant No.1 that the agreement of sale dated 8th February, 2006 has

to be impounded will have to be considered by the trial Court after the

application (Exh.No.121) filed by the plaintiff under Order VI Rule 17 of the

Code of Civil Procedure is decided.

Hence, the following order :

i) The impugned order is set aside.

ii) The Application (Exh.No.114) is restored.

iii) The trial Court shall consider the application (Exh.No.114)

after deciding the application (Exh.No.121).

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iv) The defendants are at liberty to file fresh application raising

fresh grounds, if required and if so advised, to contend that the

agreement of sale dated 8th February, 2006 is required to be

impounded.

Rule made absolute in the above terms. In the circumstances,

the parties to bear their own costs.

JUDGE

RRaut..