Bombay High Court
Pankaj S/O Roshanlal Chandna vs Fashion Planet Thr. Proprietor, ... on 13 June, 2023
Bench: Avinash G. Gharote
wp 5120.22. 1/6 4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Writ Petition No.5120/2022
(Pankaj V Fashion Planet and others)
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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.M. Quazi, Adv for petitioner.
Mr. S.S. Sharma, Adv for resp. nos. 1 and 2.
Mr. Masood Shareef, Adv for resp. nos. 3 and 4.
CORAM : AVINASH G GHAROTE, J.
DATE : 13-06-2023
Heard Mr. Quazi, learned Counsel for the
petitioner, Mr. Sharma, learned Counsel for respondent
nos.1 and 2 and Mr. Shareef, learned Counsel for
respondent nos. 3 and 4.
2. The petition questions the order dated
07-07-2022 passed below Exh-103 an application filed by
the petitioner seeking directions to defendant nos.1 and 2
to cross examine the defendant no.3 prior to the cross
examination by the plaintiff on the ground that defendant
nos.1 and 2 as well as defendant no. 3 were in collusion
with each other.
3. The learned trial Court by the impugned order
has rejected the application holding that the allegation of
collusion has not been demonstrated.
wp 5120.22. 2/6 4
4. The factual matrix of the present matter is as
under :-
5. The premises in question are three shop block
nos. 9, 10 and 11 of Municipal House No. 19/9 situated on
the ground floor and mezzanine floor of the building
known as Poonam Towers, Palm Road, Civil Lines,
Nagpur.
6. These shop blocks admittedly were in
possession of the defendant nos.1 and 2 under an
agreement of sale dated 28-11-2012 between them and the
defendant no. 4 a company, which was for financial
consideration of Rs. 2.54 Crore. As the defendant nos.1
and 2 were unable to complete the transaction, it is
contended in the plaint that with the consent of the
defendant no. 4, the same were agreed to be transferred to
the plaintiff under an agreement dated 07-10-2013 for a
consideration of Rs. 3.11 Crores. It is also contended that
the keys to the said shops were handed over to the plaintiff
to start the renovation work. The part consideration of Rs.
32 Lakh is said to be paid partly to the defendant nos.1 and
2 and partly to the defendant no.4 under the instructions
of the defendant nos.1 and 2. It is further contended that
on receipt of the possession, on 04-02-2014, the plaintiff
had commenced the work of renovation of the aforesaid
shop blocks. On 09-10-2014, it was found that the
wp 5120.22. 3/6 4
defendant no.3 had taken over the forcible possession of
the said shop blocks purportedly under an agreement, in
which the entire shares of the defendant no. 4 company
stood acquired by defendant no.3. It is equally material to
state that defendant no. 3 is the original owner of the
property.
7. In view of the aforesaid dispossession, a suit
under Section 6 of the Specific Reliefs Act came to be filed
by the plaintiff/petitioner against the respondents. In this
suit, the defendant nos.1 and 2/respondents filed their
written statement on 29-07-2015 and admitted the
agreement dated 07-10-2013 executed by them in favour
of the plaintiff. It was also admitted that part of the
consideration was paid to the respondent no. 4 company
on various dates. It is further admitted in para 6 (pg 41)
that on instructions of defendant no. 4, the defendant
no.2 had handed over one set of keys of the aforesaid
premises to the plaintiff. It is however also material to note
that the defendant nos.1 and 2 in the written statement
also admitted that the transaction has been made by
defendant nos.3 and 4 regarding transfer of shares to
defendant no.4 company at Calcutta and further denied
that any physical possession was handed over to the
plaintiff. Surprisingly, defendant nos. 3 and 4 filed a
common written statement alleging collusion in between
wp 5120.22. 4/6 4
defendant nos.1 and 2 on one hand and petitioner/plaintiff
on the other. It was further claimed that the defendant
nos. 1 and 2 in pursuance to an agreement dated
06-04-2009, between themselves and defendant no.4, had
handed over the possession of the suit property to
defendant nos.3 and 4 on 25-09-2014 which was
confirmed in writing on 26-09-2014. It is thus clear that
the defendant no.3 claims to have been put into possession
of the property in question on 25-09-2014 by the
defendant nos.1 and 2 which act was subsequent to the
agreement dated 07-10-2013 in favour of the plaintiff.
What is also material to note is that the defendant no.3
was never in the picture till 25-09-2014 even as per the
written statement of the defendants (pg 56).
8. It is therefore apparent that the averments in
the written statement of defendant nos.1 and 2 on the one
hand and that of the defendant nos.3 and 4 on the other,
clearly point out a nexus between them. Though a plea has
been raised by defendant no.3, that the plaintiff and
defendant nos. 1, 2 and 5 acted in collusion with each
other, however the very averment in the written statement
of the defendant nos. 1 and 2 on the one hand and that of
the defendant nos.3 and 4 on the other, do not support
this contention. It is also material to note that the
defendant no.3, has stepped into the shoes of defendant
wp 5120.22. 5/6 4
no.4 on account of purchase of share of defendant no.4 as
admitted in their written statement and therefore the
interest of defendant no.3 and that of the defendant no.4,
now stand in common.
9. In that view of the matter, it would be
appropriate that the defendant nos.1 and 2, to first cross
examine the defendant no.3, prior to the plaintiff. This
position is clearly spelt out from the judgment of this
Court in Sau. Kalpana Navneet Samarth and another vs
Dr Smt. Seema Arun Mankar thr. attorney Sachin Taley
and another (WP No. 7537/2019, decided on
15-11-2019), which holds that not only the written
statement, the subsequent events will also have to be taken
into consideration for the purpose of determining the
sequence of cross examination. In this context, it is also
necessary to note that the defendant nos. 1 and 2 have not
stepped into the witness box for leading any evidence.
10. In the light of above position, the impugned
order is hereby quashed and set aside and the application
below Exh-103 is hereby allowed.
11. The parties shall appear before the trial Court
on 20-06-2023, on which date the defendant no. 3 shall
present himself for cross examination which shall be
completed by the defendant nos.1 and 2 on the same date,
wp 5120.22. 6/6 4
whereupon the plaintiff shall commence his cross
examination and complete it within the shortest possible
time and in any case not beyond a period of a week from
the day it commences.
12. The defendant no.3, in case any witness is
required to be examined, shall ensure that the affidavit in
this regard be filed within a week thereafter with an
advance copy to the plaintiff whose evidence shall be
completed by the end of first week of July, 2023.
13. Since, this is a suit under Section 6 of the
Specific Reliefs Act, the trial Court shall make an endeavor
to decide the same by the end of July, 2023 and in any
case by 15-08-2023.
JUDGE
Deshmukh
