Bombay High Court
Shri Malkitsingh S/O Sadhusingh ... vs Smt. Nanda Wd/O Kamlakar Kale And ... on 27 April, 2022
Bench: Manish Pitale
903.wp.839.2019.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.839 OF 2019
Shri Malkitsingh S/o. Sadhusingh Mutar -Vs.- Smt. Nanda Wd/o.
Kamlakar Kale and ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. A. S. Shukla, counsel for the petitioner
Mr Sandeep Marathe, Advocate for respondent Nos. 4 and 5
CORAM : MANISH PITALE, J.
DATE : 27.04.2022
By this writ petition, the petitioner i.e. the
original plaintiff has challenged order dated
16.11.2018, passed by the Court of Civil Judge
Senior Division, Nagpur (hereinafter referred to as '
the trial Court'), whereby an application at Exh. 78
filed by respondent Nos. 4 and 5 under Order I Rule
10 of the Code of Civil Procedure has been allowed
and the said respondents have been directed to be
added as defendants in the suit.
2] The petitioner has filed suit for specific
performance of an agreement dated 13.05.2011. It
is the case of the plaintiff that respondent Nos.1 to
3 agreed to sell 6 acres of land from Mouza Girola
Tah. Hingna, Dist. Nagpur to the petitioner. During
the pendency of the suit, the respondent Nos. 4 and
5 filed an aforesaid application at Exh. 78, claiming
903.wp.839.2019.odt
that they have a share to the extent of 2.40 acres of
land, in view of the fact that respondent Nos. 1 to 3
are owners of only 3.60 acres of land out of the 6
acres, which was subject matter of the said
agreement. The respondent Nos. 4 and 5 relied
upon a judgment and decree dated 15.06.2018,
passed by the Court of Joint Civil Judge Junior
Division, Hingna in Regular Civil Suit No. 51 of
2012.
3] The said application was opposed on behalf
of the petitioner. But, the trial Court allowed the
application and directed that respondent Nos. 4 and
5, be added as defendants in the suit.
4] In the present writ petition, notice was
issued on 05.02.2019 and ad-interim stay to the
proceedings was granted.
appeared through counsel.
6] During the course of arguments on
13.04.2020, a statement was made on behalf of the
petitioner, on instructions, that the petitioner is
ready to restrict his claim in the suit for specific
performance of contract, only to the extent of 3.60
acres of land, taking into account the issue raised by
respondent Nos. 4 and 5 regarding their right to
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2.40 acres of land, in terms of the aforesaid
judgment and decree dated 15.06.2018 passed in
Regular Civil Suit No. 51 of 2012.
7] The petition was adjourned in order to
enable the petitioner to file an appropriate affidavit
in that regard.
8] Thereafter, the petitioner filed additional
affidavit dated 18.04.2020, the relevant portion
which reads as follows:
"4. That, originally the respondent Nos. 1 to 3 have
claimed to be owner of entire 6 acres of land out of
Khasra no. 74, however now inview of decree dated
15/06/2018, they are owners of only 3.60 acres of
land which land appears to be undivided. That, the
petitioners are not disputing the decree dated
15/06/2018 passed by Hon'ble Joint Civil Judge, Jr.
Dn., Hingna, in Regular Civil Suit No. 51/2012
which is passed in favour of petitioner no. 4 and 5.
5. That, now since the respondent no. 1 to 3
have been held to be owners of only 3.60 acres of
land out of khasra no. 74, jointly held with land of
respondent no. 4 and 5 from said khasra no. 74,
the petitioners are restricting their claim only in
respect of 3.60 acres of land belonging to the
respondent no. 1 to 3."
9] In view of the aforesaid statement made on
affidavit on behalf of the petitioner, it is clear that
the apprehension and the basis of which
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respondent Nos. 4 and 5 approached the Court
below by filing Exh. 78 under Order I Rule 10 of the
Code of Civil Procedure, is taken away and since the
petitioner on affidavit has stated that he is not
disputing the judgment and decree dated
15.06.2018 passed in Regular Civil Suit No. 51 of
2012, in favour of the respondent Nos. 4 and 5, it
becomes abundantly clear that the presence of
respondent Nos. 4 and 5 in the suit filed by the
petitioner would not be necessary. The learned
counsel for the petitioner states, on instructions,
that such an affidavit shall also be placed on record
before the trial Court also, so that the apprehension
in the mind of respondent Nos. 4 and 5 is
addressed.
10] In view of the additional affidavit placed on
record before this Court, it is evident that the
reasons stated in the impugned order while
allowing the application at Exh. 78 no longer
survive and therefore, the present writ petition
deserves to be allowed. Accordingly, the writ
petition is allowed.
11] The impugned order is quashed and set
aside and the application at Exh. 78 is dismissed.
JUDGE
Namrata
Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:27.04.2022 18:31
