Bombay High Court
Sundeep Jugalkishore Gupta vs Sunil Jugalkishore Gupta And 11 ... on 12 July, 2022
Bench: G.S. Patel, Madhav J. Jamdar
51-OSAPP-102-2017 IN NMS-1352-2015 WITH NMA-450-2017 IN APP-102-2017
WITH NMA-450-2017 IN APP-102-2017.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 102 OF 2017
IN
NOTICE OF MOTION NO. 1352 OF 2015
WITH
NOTICE OF MOTION NO. 450 OF 2017
IN
APPEAL NO. 102 OF 2017
Sundeep Jugalkishore Gupta ...Appellant
Versus
Sunil Jugalkishore Gupta & Ors ...Respondents
Mr Mutahhar Khan, with Medhavin Bhatt & Christopher Dsouza, i/b
MV Law Partners, for the Appellant.
SHEPHALI
SANJAY Ms Sonali Aggarwal, i/b M/s Dhruve Liladhar & Co, for Respondent
MORMARE
No. 1.
Digitally signed by
SHEPHALI
SANJAY
MORMARE
Date: 2022.07.13
17:42:15 +0530
CORAM G.S. Patel &
Abhay Ahuja, JJ.
DATED: 12th July 2022
PC:-
1. The Appeal is thoroughly misconceived and not maintainable.
It assails an Order of 7th August 2015. By that order, the learned
Single Judge considered two Notices of Motion. One was filed by
12th July 2022
51-OSAPP-102-2017 IN NMS-1352-2015 WITH NMA-450-2017 IN APP-102-2017
WITH NMA-450-2017 IN APP-102-2017.DOC
Plaintiff No. 1(a). It was directed against Plaintiff No.1(b). The
second Motion was vice versa by Plaintiff No. 1(b) against Plaintiff
No. 1(a). Both sought to set aside an order of dismissal and a
restoration of the Suit. The suit had been dismissed on 7th March
2014. A statement was made before the learned Single Judge that
the suit property had actually been disposed of by the Defendants
after the suit was dismissed.
2. Plaintiffs Nos. 1(a) and 1(b) are brothers. Before the learned
single Judge, each claimed to be entitled to be represented by a
different advocate. That was then, and is now, a wholly unviable and
untenable situation. Our rules or procedure have never permitted
this. All plaintiffs/petitioners/appellants are to be represented by a
single advocate. If any fellow plaintiff does not wish to be
represented by that advocate, he must be transposed as a defendant
or respondent.
3. The submission before the learned Single Judge was that no
transposition should be done because the Plaintiff might then
contrive to settle the suit without the knowledge of the Plaintiff
transposed. There is no substance to this at all. The Plaintiffs could
not have it both ways by insisting on separate representation and
being at loggerheads with each other as Plaintiffs.
4. Accordingly the learned Single Judge made a common order.
She set aside the order of dismissal of the Suit. She restored the suit
to file. She imposed costs on both Plaintiffs Nos. 1(a) and 1(b) of Rs.
10,000/- payable to Defendants Nos. 1 to 5. On restoration, she
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directed that the Plaintiff No. 1(b) was to be transposed as
Defendant No. 8. She further clarified that if Plaintiff No. 1(a)
sought a settlement with any of the Defendants, Plaintiff No. 1(a)
would have to be given notice to the transposed Plaintiff 1(b), now
Defendant No.8. Then there were other directions regarding
evidence.
5. There is no infirmity in this order at all. This is the only
course of action that was possible and we do not see how the rights
of the parties have been in any way adjudicated. This is not even a
judgment within the meaning of Shah Babulal Khimji v Jayaben D.
Kania.1 That concept has been further elucidated by this Court in
Saga Department Stores Ltd v Falak Home Developers Pvt Ltd.2
6. There is no prejudice to any of these parties. Transposed
Plaintiff No.1(b), now Defendant No. 8, is assured of notice should
the continuing Plaintiff attempt to settle. As Defendant No.8, he can
always support the Plaintiff. Further, he can argue that any decree
the continuing Plaintiff seeks must be one jointly in favour of
himself, Defendant No.8, or not at all, i.e. that there can be no valid
decree only in favour of the continuing Plaintiff without including
Defendant No.8 as a joint decree-holder. Such an order is by no
means unknown to our jurisprudence, and is quite often sought and
made (for instance, in a partition or administration suit).
7. The Appeal is without substance. It is dismissed. No costs.
1 (1981) 4 SCC 8.
2 2008 SCC OnLine Bom 667 : (2008) 6 Bom CR 59.
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8. All pending Applications are disposed of as infructuous.
(Abhay Ahuja, J) (G. S. Patel, J)
12th July 2022
