Bombay High Court
Smt. Mrunalini Wd/O Prabhakar ... vs Sau. Rewati Rajendra Gadgid And ... on 20 July, 2017
Bench: S.B. Shukre
1 CRA9.17 with 92.17(J)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL REVISION APPLICATION NO.9/2017
with
CIVIL REVISION APPLICATION NO.92/2017
...................................................
CIVIL REVISION APPLICATION NO.9/2017
1. Shri Abhishek s/o Dilip Khati ...APP
LICANT
S
Aged about : 30 years, Occ. Business,
2. Shri Yogen s/o Dilip Khati,
aged about 28 years, Occ. Busines.
Both R/o Gangotri Apartment,
224, Khadiche Maidan, Somwarpeth,
Pune.
3. Sau.Ranjana w/o Prashant Shitoot,
Aged about 52 years, Occ. Household,
R/o. Aditi Apartment, Sanewadi, Aundh,
Pune.
--Versus ---
1. Sau. Rewati w/o Rajendra Gadgid, NON-APPLICANT
S
Aged about 42 years, Occ. Teacher.
New Ramdaspeth, Nagpur.
2. Shri Dewashish s/o Rajendra Gadgid,
Aged about 8 years, Occ. Student.
3. Ms. Maitrayee d/o Rajendra Gadgid,
Aged about 14 years, Occ. student,
(Non applicant nos. 2 and 3 being minors are represented through
their natural Guardian/Mother namely Sau.Rewati w/o Rajendra
Gadgid).
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2 CRA9.17 with 92.17(J)
All R/o Near Carmel School,
Akola, District Akola.
4. Shri Rajendra Prabhakar Gadgid,
Aged 50 years, Occ. Business,
R/o. Swarajpeth, Near Agrawal Hospital,
Lady Hoardings Road, Akola.
5. Sau. Mrunalini wd/o Prabhakaar Gadgid,
Aged about 81 years, Occ. Household work.
6. Shri Ashok s/o Prabhakar Gadgid,
Aged about 60 years, Occ.Nil
R/o. Lady Hoardings Road,
Swarajpeth, Akola.
CIVIL REVISION APPLICATION NO.92/2017
1. Sau. Mrunalini wd/o Prabhakar Gadgid, APPLICANTS
Aged about 81 years, Occ. Household work.
2. Shri Ashok s/o Prabhakar Gadgid,
Aged about 60 years, Occ.Nil
R/o. Lady Hoardings Road,
Swarajpeth, Akola.
--Versus ---
1. Sau. Rewati w/o Rajendra Gadgid, NON-APPLICANT
S
Aged about 42 years, Occ. Teacher.
New Ramdaspeth, Nagpur.
2. Shri Dewashish s/o Rajendra Gadgid,
Aged about 8 years, Occ. Student.
3. Ms. Maitrayee d/o Rajendra Gadgid,
Aged about 14 years, Occ. student,
(Non applicant nos. 2 and 3 being minors are represented through
their natural Guardian/Mother namely Sau. Rewati w/o Rajendra
Gadgid).
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3 CRA9.17 with 92.17(J)
Non applicant Nos. 1 to 3 are
R/o Near Carmel School,
Akola, District Akola.
4. Shri Rajendra Prabhakar Gadgid,
Aged 50 years, Occ. Business,
R/o. Swarajpeth, Near Agrawal Hospital,
Lady Hoardings Road, Akola.
5. Shri Abhishek s/o Dilip Khati
Aged about 30 years, Occ. Business,
6. Shri Yogen s/o Dilip Khati,
aged about 28 years, Occ. Business.
Respondent nos. 5 and 6 are
R/o. Gangotri Apartment,
224, Khadiche Maidan, Somwarpeth,
Pune.
7. Sau.Ranjana w/o Prashant Shitoot,
Aged about 52 years, Occ. Household,
R/o Aditi Apartment, Sanewadi, Aundh,
Pune.
------------------------------------------------------------------------------------------------------
Shri S.Y.Deopujari, Advocate for applicants in both CRA.
Shri U.J.Deshpande, Advocate for respondent nos. 1 to 3.
Shri S.S.Ghate, Advocate for respondent no.4.
CORAM : S.B.SHUKRE,J.
DATED : 20.07.2017
ORAL JUDGMENT
Heard learned counsel for the parties.
2. Rule. Heard finally by consent.
3. In view of orders of this Court dated 03.02.2017 and 07.07.2017,
both these CRAs are heard together and disposed of by this common judgment.
4 CRA9.17 with 92.17(J)
4. The impugned order has been passed on 28.11.2016. Before this
order was passed, a compromise decree had been passed on 30.03.2016 in Special
Civil Suit No.119/2015 in which respondent no.5 in the CRA 9/2017, and
applicant in CRA No.92/2017, was the plaintiff and applicant nos. 1,2,3 and
respondent nos. 4 and 6 in CRA No.9/2017 were the defendants. In that suit, the
respondent nos. 1, 2 and 3 were not joined as party defendants. But, that suit
was for seeking a decree of partition of the joint family property and upon the
compromise, a decree was also passed allotting equal share to the plaintiff and all
the defendants therein.
5. Now, in the present suit i.e. R.C.S.No.205/2015, an injunction has
been sought against the applicants as well as respondent nos. 4, 5 and 6, who
have been allotted separate shares in the joint family property by a decree passed
on 30.03.2016 in Special Civil Suit No.119/2015 to the effect that they be
restrained from alienating their shares in the joint family property. This would
show that jointness of the family property or otherwise, goes to the root of the
matter and unless this aspect is considered properly, no interim order can be
passed in a just and proper manner. Unfortunately, the parties whose duty was it
to place on record a copy of compromise decree had not performed their duty,
although they were having the knowledge of the same. Had this been done by
these parties, the situation would not have come to this stage. Be that as it may,
5 CRA9.17 with 92.17(J)
the fact remains that the issue as stated earlier, has formed the foundation for
granting any discretionary relief in a case like the instant one. Therefore, I am of
the view that the impugned order would have to be considered as the order
passed upon non consideration of the material facts and therefore, it would have
to be quashed and set aside.
6. Accordingly, both these civil revision applications are allowed. Order
dated 28.11.2016 passed below Exhs. 1, 39 and 40 is quashed and set aside.
Similarly, order dated 21.08.2015 passed below Exh. 22 is also quashed and set
aside. The matters are remanded back to the trial Court for decision afresh in
accordance with law after giving of due opportunity of hearing to the parties. The
parties are permitted to make necessary amendments and also to place on record
the documents disclosing material facts. All questions relating to facts and the
law are kept open. The parties to bear their own costs.
JUDGE
Andurkar..
