Bombay High Court
Smt. Pallavi Vilas Khare vs Smt. Shashikala Shamrao Band And ... on 14 December, 2017
Bench: A. D. Upadhye
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
CIVIL REVISION APPLICATION NO.90/2017
APPLICANT : Smt. Pallavi Vilas Khare
PETITIONER :- Aged about 64 years, Occ - Advocate,
ORI. PLAINTIFF R/o 'SHOBHAN', Plot No.36, Shankar Nagar,
On R.A. Nagpur.
...V E R S U S...
RESPONDENTS : 1) Smt. Shashikala Shamrao Band,
ORI. DEFENDANTS Aged about 81 years, Occ. - Household.
On R.A.
2) Mr. Nilay Shamrao Band,
aged about 54 years, Occ. - Cultivation.
3) Sau. Rohini w/o Nilay Band,
aged about 52 years, Occ. Cultivation.
1 to 3 all r/o Shriram Apartments,
Plot No.12, Jeevan Chhaya Nagar, Near Nagpur
Nagrik Bank, Pratap Nagar, Ring Road,
Nagpur - 22.
4) Mahesh s/o Prabhakar Dolas,
Aged about 52 years, Occ. Business,
R/o Plot No.38, Kannamwar Nagar,
Wardha Road, Nagpur.
5) M/s Kb Associates, A Partnership Firm
Having its office at Shriram Apartment,
Plot No.12, Jeevan Chhaya Nagar, Near
Nagpur Nagrik Bank, Pratap Nagar Ring Road,
Nagpur - 22.
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Shri Rohit Joshi, Advocate for applicant
None for the respondents
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2
CORAM : ARUN D. UPADHYE, J.
DATED : 14/12/2017
ORAL JUDGMENT
1. Heard learned Counsel for the applicant. None appears for
the respondents, though served. Rule. Rule made returnable forthwith.
The civil revision application is heard finally with the consent of the
learned Counsel for the applicant.
2. By this civil revision application, the applicant has prayed to
quash and set aside the order dated 3/3/2017 passed by the 6 th Joint Civil
Judge Junior Division, Nagpur below Exh.14 in Regular Civil Suit
No.1402/2012.
3. The brief facts of the case are as under : -
The applicant/plaintiff has filed suit for specific performance
of contract as well as declaration and injunction. The defendants
appeared in the suit and filed their written statement on 01/02/2011.
4. The applicant has filed application under Order XII Rule 6 of
the Code of Civil Procedure praying for passing of judgment on admission
and to decree the suit. The said application is filed on 10/4/2012. In the
said application, it is contended that the suit is filed for specific
performance on the basis of agreement of sale dated 27/12/2001 entered
into between the plaintiff and defendants. In the application, it is averred
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that the plaintiff has categorically averred in the plaint that the entire sale
consideration is already paid by her to the defendants. She has also
averred that she is in settled possession of the suit property. It is
contended that the defendants have filed written statement on 1/2/2011
and material pleadings of the plaintiff have been admitted by the
defendants. The only defence, the defendants have raised, is that the
sale-deed in respect of the suit property cannot be executed for want of
non-agricultural assessment of the suit property and other plots. The
plaintiff thus claimed that this is a fit case for exercising the power vested
under Order XII Rule 6 of the Code of Civil Procedure and prayed for
passing of the judgment under the said provision.
5. It appears that the defendants have not filed say to the said
application. After hearing the parties, the learned 6 th Joint Civil Judge
Junior Division, Nagpur passed the impugned order and rejected the
prayer of the plaintiff.
6. I have heard Shri Rohit Joshi, the learned Counsel for the
applicant. He submitted that the defendants have admitted the claim of
the plaintiff by filing their written statement. The learned trial Court
could have passed conditional decree on the application filed by the
plaintiff. The impugned order is unsustainable in law and the same be set
aside by allowing the civil revision application.
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7. After considering the submission of the learned Counsel for
the applicant and after going through the impugned order as well as the
documents placed on record, I am of the view that the impugned order
dated 3/3/2017 passed by the learned 6 th Joint Civil Judge Junior
Division, Nagpur below Exh.14 in Regular Civil Suit No.1402/2012 does
not require any interference of this Court. It is to be noted that as per
Order XII Rule 6 of the Code of Civil Procedure, the discretionary powers
are given to the Court to pass the decree on the basis of averments made
in the plaint and admission given by the defendant in written statement.
The defendants have not disputed the entire plaint, but partly disputed
the plaint in paragraph no.5 to 15 of their written statement. Not only
that by special pleadings in the written statement they have given the
details in respect to plaint filed by the plaintiff and also claimed
compensatory costs of Rs.25,000/- from the plaintiff. It is also observed in
the order that already issues are framed vide Exh.13 on 21/11/2011,
however, the plaintiff has not adduced her evidence after framing the
issues, for more than five years. If that is so, the application (Exh.14) filed
by the plaintiff under Order XII Rule 6 of the Code of Civil Procedure was
rightly rejected by the learned 6 th Joint Civil Judge Junior Division,
Nagpur. The plaintiff should have adduced the evidence on the issues
framed in the matter. Instead of that the present application is filed for
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passing the judgment. The matter is of the year 2012. The learned trial
Judge has rightly observed that it is nothing but to delay the proceedings
and rejected the same.
8. No interference of this Court is called for in the impugned
order. The civil revision application is devoid of any merit and liable to be
dismissed and accordingly the same is dismissed. Rule stand discharged.
No costs.
JUDGE
Wadkar
