Bombay High Court
Radhabhai Krishnabhai Patel ... vs Smt. Koyaliben Manganbhai Patel ... on 15 December, 2021
Bench: G.S. Patel, Madhav J. Jamdar
Digitally signed 11-ASFA-457-2020.DOC
by HEMANT
HEMANT CHANDERSEN
CHANDERSEN SHIV
SHIV Date:
2021.12.16
17:19:25 +0530
hcs
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 457 OF 2020
Radhabhai Krishnabhai Patel (Since deceased)
Through LRs Leela Ramu Radka Patel & Ors. ...Appellants
Versus
Koyaliben Manganbhai Patel & Ors. ...Respondents
WITH
CIVIL APPLICATION NO. 368 OF 2020
IN
FIRST APPEAL NO. 457 OF 2020
Radhabhai Krishnabhai Patel (Since deceased)
Through LRs Leela Ramu Radka Patel & Ors. ...Appellants
Versus
Koyaliben Manganbhai Patel & Ors. ...Respondents
Mr Mandar Soman, with Mr Hardik Joshi for the Appellants.
Mrs Prabha B, with Mr Omkar Nagwekar for Respondent Nos 10 and
11.
Mr Vineet Naik, Senior Advocate, with Mr Sukand Kulkarni, Mr
Ayaz Bilawala, Mr Yogesh Gaikwad and Mr Yohan Mehta i/b
Bilawala & Co. for Respondent Nos 12 and 13.
Mr Girish P Agrawal, for Respondent Nos 3A to 3E in IA No
3768/2021.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 15th December 2021
PC:-
15th December
11-ASFA-457-2020.DOC
1. The following order is by consent of the Appellant,
Respondents Nos. 12 and 13 and Respondents Nos. 3(a) to 3(e).They
agree that reasons are not required.
2. By consent of these parties, the impugned order dated 8th
April 2019 passed by the learned Civil Judge, Senior Division,
Dadra & Nagar Haveli, Silvassa below Exhibit 55 in RCS No. 49 of
2012 is quashed and set aside.
3. RCS No. 49 of 2012 is restored to file of the Civil Judge,
Senior Division.
4. That suit will proceed to trial on merits. The Plaintiff in the
suit (Appellant before us) will be at liberty to file an application for
interim relief. The application and the suit will be decided on
merits.
5. We, however, clarify that it is open to both sides to rely on the
judgment dated 22nd June 2007 in the previous Regular Civil Suit
No. 23 of 2004. The parties may rely on this judgment for the facts
as these then stood, the findings and conclusions, and the evidence
led.
6. We note that Respondent Nos 12 and 13 claim to have
subsequently (i.e. after 2007,on 7th September 2011) acquired full
rights in respect of immovable property in question from one or
more of other Respondents/ Original Defendants. The contesting
15th December
11-ASFA-457-2020.DOC
Defendants/ present Respondents Nos 12 and 13, agree that they
will not raise the plea of res judicata before the Civil Judge. Subject
to this, all other contentions are expressly kept open.
7. Since Respondents Nos.12 and 13 are subsequent purchasers
from the other Respondents, Respondents Nos. 12 and 13 will be
defending the suit and not their vendors. Hence, Respondents Nos.
12 and 13 agree that the specific consent of the other Respondents to
this order is not required.
8. We note that presently before us are Respondent Nos 10 to 13.
There are other Respondents as well. Their contentions are also
kept open. Respondent Nos 1, 2, 4 to 9 are absent despite service.
Respondent Nos 3(a) to 3(e) are also present before us and have no
objection to this order.
9. Interim Application No. 3768 of 2021 for impleading the legal
heirs of deceased Respondent No 3 is made absolute. The necessary
amendment is to be carried out without need of reverification within
one week from today.
10. We make it clear that we have not expressed any opinion on
the merits of the dispute.
11. Civil Application No. 368 of 2020 for stay is infructuous and
is disposed of accordingly.
15th December
11-ASFA-457-2020.DOC
12. All concerned will act on production of a digitally signed copy
of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
15th December
