Sunil Chandrabhanji Sorte And ... vs Mahadeo Baliram Aratpayre And ...
2021 Latest Caselaw 16711 Bom

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    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH : NAGPUR

            WRIT PETITION NO. 1357 OF 2020

1. Sunil Chandrabhanji Sorte,
   Aged 32 years, Occ. Private work,


2. Ashish Ashokrao Wankhede,
   Aged 32 years, Occ. Farmer,

   Both R/o. Flat No. 305,
   N.I.T. Complex, Near Gajanan
   Mandir, New Narsala Road,
   Mhalgi Nagar, Nagpur                   PETITIONERS


         ...Versus...


1. Mahadeo Baliram Aratpayre,
   Aged 57 years, Ocd. Agriculture.


2. Shri Rajendra Baliram Aratpayre,
   Aged 38 years, Occ. Agriculture.


3. Bhanudas Baliram Aratpayre,
   Aged 48 years, Occ. Agriculture.


4. Smt. Rekha Gajanan Shendre,
   Aged 37 years, Occ. Private work,

   All R/o. At Post- Uti,
   Tahsil- Umred, District Nagpur.        RESPONDENTS
                                2               46.WP.1357-2020 JUDGMENT.odt




-----------------------------------------------
Mr. N.G. Jetha, Advocate for the Petitioners.
Mr. V.R. Baseshankar, Advocate for Respondent Nos. 1 to 4.
-----------------------------------------------

                   CORAM : AVINASH G. GHAROTE, J.

                   DATED      : 2nd DECEMBER, 2021.

ORAL JUDGMENT :-


            Heard.

2. Rule. Rule made returnable forthwith. Heard finally

with the consent of the learned counsel for the rival parties.

3. Mr. Jetha, learned counsel for the petitioners,

vehemently raises a grievance, regarding the manner in which

the Exh. 5 has been decided by the learned Trial Court and the

appeal has been decided by the learned Appellate Court. It is his

contention, that though the suit as filed by the plaintiffs was

simplicitor for cancellation of Power of Attorney dated

24.01.2014, without claiming anything else, the learned Trial

Court has granted an injunction against the

petitioners/defendants, restraining them from creating a third

party interest in the suit property. It is his contention, that this 3 46.WP.1357-2020 JUDGMENT.odt

was not permissible, as the sale-deed dated 30.10.2017, was

executed prior to the institution of the suit, which was filed on

20.01.2018. He further submits, that this relief could not be

granted by the Courts below.

4. Mr. Baseshankar, learned counsel for the

respondents submits, that the entire conduct of the petitioners/

defendants is coloured by fraud, inasmuch as, though the Power

of Attorney dated 24.01.2014, was cancelled by way of a notice

dated 29.04.2017 and so also a public notice in respect of the

same was published on 22.06.2017, in daily news paper

'Lokmat Samachar', the petitioners/defendants, inspite of

knowledge of the same had executed the sale-deed dated

30.10.2017, in his own favour on the strength of Power of

Attorney dated 24.01.2014, which was already cancelled. He

further submits, that the suit has subsequently been amended

and a challenge has been raised to the sale-deed dated

30.10.2017, by way of an amendment, which has been allowed,

and therefore, the objection which is raised by the learned

counsel for the petitioners does not survive.

4 46.WP.1357-2020 JUDGMENT.odt

5. The averments on record indicate, that the prayer in

the suit, on the date when it was instituted, on 20.01.2018, was

restricted to the cancellation of the Power of Attorney. The

application for injunction, also did not anywhere indicates any

transfer having been affected by the petitioners/defendants on

the basis of the said Power of Attorney. It appears, that the

written statement disclosed the factum of the sale-deed,

considering which, it was necessary for the plaintiffs, to have

immediately amended the plaint seeking a relief regarding the

sale-deed dated 30.10.2017. The Courts below, however by

ignoring this position that there was no challenge to the sale-

deed dated 30.10.2017 or for that matter no relief was sought

in Exh.5, in that regard granted the same, in view of the fact,

that the Power of Attorney stood cancelled by virtue of notice

dated 29.04.2017 and the subsequent public notice dated

22.06.2017. Though, the findings regarding the cancellation of

the Power of Attorney cannot be disputed, however, the relief

which was granted was beyond something which was claimed in

the application below Exh. 5. That being the position, the order

below Exh. 5 passed by the learned Trial Court dated

14.12.2018 and the judgment dated 08.11.2019 passed by the 5 46.WP.1357-2020 JUDGMENT.odt

learned Appellate Court in M.C.A. No. 24/2019, cannot be

sustained. They are therefore quashed and set-aside.

6. It is however made clear, that since the suit has been

subsequently amended, it would be permissible for the plaintiffs

to file an application for injunction, seeking the relief of

injuncting the petitioners/defendants acting upon the sale-deed

dated 30.10.2017. Mr. Baseshankar, learned counsel for the

respondents submits, that such an application before the

learned Trial Court within a period of 15 days, an application

for injunction shall be filed. The petitioners/defendants

therefore shall stand restrained from creating third party

interest in the suit property till the decision of this application,

which shall be decided by the learned Trial Court within a

period of 45 days from the date of its filing.

7. The petition is accordingly allowed in the above

terms with no order as to costs.

8. It is made clear, that the application for injunction

shall be decided on its own merits without being influenced by 6 46.WP.1357-2020 JUDGMENT.odt

the observations made earlier.

9. Rule is made absolute.

( AVINASH G. GHAROTE, J.)

S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:03.12.2021 17:05