Bombay High Court
Sanjay S/O Shriramji Pendharkar vs Smt. Sumitradevi Wd/O ... on 28 January, 2021
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 6378/2019
Sanjay s/o Shriramji Pendharkar,
aged 50 years, Occ. Business,
r/o Plot No. 37, East Wadhaman Nagar,
Nagpur. .....PETITIONER
...V E R S U S...
1. Smt. Sumitradevi wd/o Bajrangilal
Agrawal, aged 63 years, Occ. Business,
2. Shri Anand s/o Bajrangilal Agrawal,
aged 35 years, Occ. Business,
Both r/o Flat No. 203, Radhakrishna
Apartment, Wardhaman Nagar, Nagpur.
3. Sau. Rajshree w/o Sapan Jhunjhunwala,
aged 43 years, Occ. Housewife,
r/o Anand Nagar, Near Pimprala
Railway Gate, Jalgaon, Maharashtra
4. Sau. Rita w/o Kapil Agrawal,
aged 42 years, Occ. Housewife,
r/o 99/1, Riviera Town,
Near Manit Square, Bhopal (MP) ...RESPONDENTS
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Mr. N. G. Jetha, Advocate for petitioner.
Mr. S. S. Sitani, Advocate for respondents.
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CORAM:- V. M. DESHPANDE, J.
DATED :- 28.01.2021
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ORAL JUDGMENT
1. Rule. Rule is made returnable forthwith. Heard finally
by consent of learned counsel for the parties.
2. The present petition is filed by original defendant
against whom suit for specific performance of contract and for
possession of the suit property was filed in the Court of leaned
Civil Judge Senior Division, Nagpur. The suit was registered as
Special Civil Suit No.70/2017. Present respondents are original
plaintiffs. Along with plaint, an application under Order XXXIX
Rules 1 and 2 was also filed by the plaintiffs claiming the restraint
order against the defendant-present petitioner from creating any
third party interest over the suit property.
3. On being summoned, petitioner appeared and
participated in the suit proceedings and filed written statement
and also reply to the application for temporary injunction. Learned
17th Jt. Civil Judge Senior Division, Nagpur, vide order dated
15.04.2017, was pleased to reject the application filed on behalf of
the respondents-original plaintiffs.
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4. Felt aggrieved thereby, the respondents-plaintiffs
approached the appellate Court by filing Misc. Civil Appeal No.
116/2017. The appeal was heard on its own merit by learned
District Judge-12, Nagpur and by judgment dated 06.08.2019, it
was directed by appellate Court that during the pendency of the
suit, the defendant-petitioner shall not create any third party
interest. Hence, this writ petition.
5. A submission is made on behalf of the petitioner that
while deciding the application for temporary injunction, the
learned lower appellate Court has made various observations
touching to the merits of the suit, which is impermissible.
6. With the assistance of both the learned counsel, I have
gone through the impugned judgment. I see some force in the
submissions made by Mr. Metha, learned counsel for petitioner.
7. The learned lower appellate Court, in my view, has
rightly passed the order that during the pendency of the suit, the
petitioner would not create any third party interest, to that extent,
the order passed by learned lower appellate Court is right.
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However, while deciding the application for temporary
injunction, it was the duty of the trial Court not to observe
anything on merit of the matter since it may cause prejudice to the
plaintiffs as well as defendant since the suit is still pending on the
file of the Court below and parties have yet to open their
respective cases.
8. In view of that, the writ petition is disposed of with
following observations.
The order passed by District Judge-12, Nagpur in Misc.
Civil Appeal No.166/2017 dated 06.08.2019 directing the
petitioner-original defendant not to create any third party interest
and not to transfer the suit property during the pendency of the
suit is hereby maintained.
Special Civil Suit No.70/2017 pending on the file of
Joint Civil Judge Senior Division, Nagpur is hereby expedited.
The learned Judge shall decide the said suit on its own merit by
giving opportunity of sufficient hearing to both; plaintiffs and
defendant, within a period of 1 ½ years from the date of receipt of
this order. While deciding the suit on its own merit, the learned
trial Judge shall not get influenced by any of the observations
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made by District Judge-12, Nagpur while deciding Misc. Civil
Appeal No.166/2017.
The writ petition is disposed of. Rule is accordingly.
No order as to costs.
JUDGE
kahale
