Deepak Nivrutti Bandal And Anr vs Santosh Goel And Ors
2021 Latest Caselaw 11683 Bom

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BDP-SPS-TAC



  BHARAT
  DASHARATH
  PANDIT                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Digitally signed
  by BHARAT
  DASHARATH
                                         CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO. 3876 OF 2017
  PANDIT
  Date: 2021.08.30
  11:42:47 +0530




                     Mr. Deepak Nivrutti Bandal and Anr              ....Petitioners
                          V/s
                     Mr. Santosh Goel and Others                     .....Respondents

                     Mr. Shriniwas S. Patwardhan for the Petitioner.
                     Mr. Nitin P. Deshpande for Respondent No.1.

                                         CORAM: NITIN W. SAMBRE, J.

                                          DATE:    AUGUST 24, 2021
                     P.C.:-

                     1]       This Petition is by Defendants to Special Civil Suit No.2100 of

2011 wherein Respondents/Plaintiffs sought a decree of declaration of

ownership, execution and registration of Sale Deed dated 13/12/2010

or in the alternative specific performance and possession.

2] It appears that Plaintiffs/Respondents moved an application

Exhibit-62 under Order 6 Rule 17, which came to be allowed vide

impugned order dated 10/7/2014.

3] Mr. Patwardhan, learned Counsel for the Petitioners/Defendants

would urge that the suit in question is principally under Section 77 of

26 WP-3876-17.doc

the Registration Act. By way of amendment, what is sought to be

inserted is, relief of possession under Specific Relief Act. Since the

relief claimed under Section 77 of the Registration Act is based on its

scheme which is complete Code, as defined thereunder, parallel relief

under Specific Relief Act for possession ought not to have been

permitted to be incorporated. Mr. Patwardhan would draw support

from judgment of this Court in the matter of Rafiuddin Nuruddin

Musalman vs. Abduyl Karim Abdul Reheman and Others reported in

2005(4)Mh.L.J. 646.

4] While countering aforesaid submissions, Mr. Deshpande, learned

Counsel for Respondent No.1 would invite attention of this Court to

the judgment of the Apex Court in the matter of Kalavakurti Venkata

Subbaiah vs. Bala Gurappagari Guruvi Reddy reported in (1999) 7

SCC 114. According to him, relief of possession claimed under the

provisions of the Specific Relief Act has larger amplitude and as such,

the Respondent/Plaintiff has every right to choose the relief to be

claimed being dominus litis. He would draw support from

observations made in paras 10 and 11 of the aforesaid judgment.

                                                           26 WP-3876-17.doc


5]    Considered rival submissions.



6]    In my opinion, in view of law laid down by the Apex Court in the

matter of    Kalavakurti cited supra, it cannot be said that Plaintiff

cannot claim relief of possession under the provisions of the Specific

Relief Act in a suit initially initiated under Section 77 of the

Registration Act, particularly when observations of the Apex Court are

that relief claimed under the Specific Relief Act has wider scope than

the relief claimed under Section 77 of the Registration Act. Though by

relying on the aforesaid judgment of this Court, Mr. Patwardhan tried

to canvass that relief claimed under Section 77 of the Registration Act

and the one under Specific Relief Act cannot be prayed in same suit,

however, in answer to the same, it can be noticed that it is always

open for the Plaintiff to claim larger relief. In such an eventuality, if so

required, Plaintiff may reconsider restricting relief claimed in his suit,

if so desired at appropriate stage.

7] In the aforesaid backdrop, in my opinion, no case for

interference in extraordinary jurisdiction is made out. Petition as such

fails and same stands dismissed.

( NITIN W. SAMBRE, J. )