Bombay High Court
Shrirang M Shinde vs Shri. Narayan Ramchandra Yadav on 14 July, 2021
Bench: R.D. Dhanuka, Virendrasingh Gyansingh Bisht
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW PETITION NO. 24 OF 2021
IN
WRIT PETITION NO. 3251 OF 2020
Shrirang M. Shinde ... Review Petitioner
Versus
Narayan Ramchandra Yadav & Ors. ... Respondents
Mr. Makrand Kale i/b Mr. Ramakant D. Patil, for the Review
Petitioner.
Mr. Shailendra S. Kanetkar, for the Petitioner in Writ Petition.
Mr. Pratap Patil, for Respondent No. 3 in Review Petition and
Respondent No. 2 in Writ Petition- APMC.
Ms. Kavita N. Salunke, AGP for Respondent No.2 in Review Petition
and for Respondent No.1 in Writ Petition.
Mr. Mubeen Sarkhat, on Notice (Erstwhile Advocate for the Review
Petitioner).
CORAM : R. D. DHANUKA &
V. G. BISHT, JJ.
DATE : 14th July, 2021.
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PC:
Heard learned counsel appearing for the parties. We have
perused the averments made and the contentions raised in the
Review Petition and the Affidavit-in-Reply filed by the learned
counsel for the petitioner. We have also perused the affidavit filed
by the erstwhile Advocate Mr. Sarkhot before this Court.
2 The Review Petitioner seeks recall of the order dated 31 st
March, 2021 passed by this Court on various grounds. Certain
allegations are made by the Review Petitioner against the erstwhile
Advocate which allegations are denied by the erstwhile Advocate
for the review petitioner in the affidavit filed by him.
3 We are informed that pursuant to the order dated 31st March,
2021 passed by this Court, APMC has transferred the Gala No. 253
in favour of the original petitioner.
4 There is also a dispute between original petitioner and the
review petitioner in respect of the possession of the said Gala.
Pursuant to an interim order dated 22 nd June, 2021 this Court
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directed the Registrar of this Court to depute an officer of this
Court who would act as a Court Commissioner and to visit the Suit
Gala and to submit the report as to who is in physical possession of
the suit Gala and since when. The Court Commissioner submitted a
report dated 2nd July, 2021 and opined that the suit Gala is in the
name of the Review Petitioner and he is in possession.
5 Mr. Kanetkar, learned counsel for the original petitioner,
states that though various opportunities were granted by this Court
to the Review Petitioner to file Affidavit-in-Reply in the Writ
Petition, the Review Petitioner failed to file any reply before this
Court. The APMC had already passed a Resolution to transfer the
suit Gala in favour of the original petitioner. It is submitted that in
view of the original petitioner having remained absent before this
Court and having not filed any Affidavit-in-Reply, this Court is
justified in passing the order in question on 31st March, 2021
allowing the Writ Petition filed by his client.
6 Insofar as the report of the Court Commissioner is concerned,
it is submitted by the learned counsel for the original petitioner
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that the Review Petitioner has taken forcible possession of the said
suit Gala from his client who was allegedly in possession of the said
Gala.
7 One of the contention raised by the Review Petitioner in the
Writ Petition is that before disposing of the Writ Petition, neither
the Writ Petition was admitted nor any notice for hearing and final
disposal was issued upon the Review Petitioner. Mr. Kanetkar,
learned counsel for the Original Petitioner, does not dispute this
position.
8 Insofar as allegation against the erstwhile Advocate made by
Review Petitioner is concerned, there is serious dispute between the
Review Petitioner and erstwhile Advocate, whether the instruction
were given by the Review Petitioner to the learned Advocate or not,
whether the erstwhile Advocate had informed about the progress of
the Writ Petition before this order and whether any instructions
were given by the Review Petitioner to file any reply in the Writ
Petition or not. In view of the fact that we have proposed to recall
the order passed by this Court on dated 31 st March, 2021, we do
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not propose to entirety to this controversy. At this stage, learned
counsel for the review petitioner, on instructions, states that his
client withdraws the allegations made by his client against the
erstwhile Advocate. Statement is accepted.
9 Insofar as the factum of possession as has been prima-facie
observed in the Court Commissioner's Report submitted before this
Court, we do not propose to make any observation in respect of
that aspect.
10 The fact remains that the Writ Petition was neither admitted
nor any notice for final disposal was issued by this Court before
passing the order dated 31st March, 2021 upon the Review
Petitioner. The Writ Petition is admittedly disposed of without any
such notice to the Review Petitioner. On this ground we are
inclined to recall our order dated 31 st March, 2021. We,
accordingly, pass the following order.
ORDER
i) The judgment and order dated 31 st March, 2021 passed by
this Court is recalled. The Writ Petition No. 3251 of 2020 is
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restored to file.
ii) The Review Petitioner (Original Respondent No.3) to file
Affidavit-in-Reply within three weeks from today and shall serve
copy thereof on the Petitioner's Advocate simultaneously.
iii) The Review Petitioner shall also file Vakalatnama in favour of
the new Advocate within one week from today. The Advocate,
who would file Vakalatnama on behalf of the Review Petitioner,
shall inform the learned Advocate to the Petitioner within one week
from the date of filing Vakalatnama about such filing of
vakalatnama.
iv) Rejoinder, if any, to the Affidavit-in-Reply that would be filed
by the Review Petitioner shall be filed within two weeks from the
date of service of the Affidavit-in-Reply with a copy be served upon
the respondent's Advocate.
v) Insofar as the transfer of the suit Gala in favour of the
petitioner by the APMC pursuant to the order dated 31 st March,
2021 is concerned, the respondent no.3 would be at liberty to apply
for cancellation of the said transfer by filing a separate Writ
Petition. If any such Writ Petition is filed within three weeks from
today, the Review Petitioner can apply for clubbing of the said Writ
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Petition with Writ Petition No. 3251 of 2020.
vi) We direct the petitioner as well as the Review Petitioner not
to create any further third party rights in respect of the said Gala
for a period of eight weeks from today.
vii) Mr. Kale, learned counsel for the Review Petitioner, on
instructions, does not press any allegations made against the
erstwhile Advocate Mr. Sarkhot. The allegations made against the
learned Advocate Mr. Sarkhot stand withdrawn forthwith.
viii) Review Petition is disposed of in aforesaid terms. No order as
to costs.
(V. G. BISHT, J.) ( R. D. DHANUKA, J.)
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