Bombay High Court
Priya Narayan Pawar vs Smt. Kantabai Narayan Pawar And Ors on 17 August, 2021
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
Digitally signed
IRESH by IRESH
SIDDHARAM
SIDDHARAM MASHAL
MASHAL Date: 2021.08.18
10:04:07 +0530
10.10287.19 WP.doc
ISM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10287 OF 2019
PRIYA NARAYAN PAWAR ....PETITIONER
V/s.
SMT. KANTABAI NARAYAN PAWAR ..RESPONDENTS
AND ORS
Mr. Siddhartha R. Ronghe for the petitioner
Mr. Dilip Bodake for respondent nos. 1 to 3
CORAM : NITIN W. SAMBRE, J.
DATE: AUGUST 17, 2021.
P.C.:
1] Order impugned is passed in exercise of powers under Order 39
Rule 11 of Code of Civil Procedure, 1908 (Hereinafter referred to as 'C.P.C.' for the sake of brevity) wherein prayer of the petitioner- plaintiff for striking out defence of respondent-defendant is rejected. 2] It appears that defendant suffered order of temporary injunction on 03/02/2014 and subsequent thereto, he has gifted part 1/3 10.10287.19 WP.doc of the suit property in favour of his son Rishikesh and also transferred one of the property for a valid consideration. 3] Trial Court rejected the prayer for striking out defence on the ground that once Order 39 Rule 2A of C.P.C. was unsuccessfully invoked by the petitioner-plaintiff for the very same cause, Order 39 Rule 11 of C.P.C. for striking out defence was not maintainable. It is also observed that application for striking out defence was preferred at much belated stage i.e. when the suit was almost on the verge of conclusion.
4] Plain reading of provisions of Order 39 Rule 2A and Order 39 Rule 11 of C.P.C. does not contemplate that said provision cannot be invoked in the proceedings at the same time.
5] It appears that remedy under Order 39 Rule 11 of C.P.C. by way of Bombay Amendment is incorporated by way of additional protection in favour of the plaintiff and against erring defendants who are not honouring undertaking given to the Court or are fouting the 2/3 10.10287.19 WP.doc orders of the Court.
6] Order 39 Rule 11 of C.P.C. also does not contemplates as to the stage at which proceedings for striking out defence can be made. 7] In the aforesaid background, in response to the Courts query, learned counsel appearing for the defendants who prima facie appears to have fouted the orders of injunction seek time to take instructions as to whether defendant is willing to reverse the gift deed and also deposit entire consideration received by him in the Trial Court within stipulated period.
8] In the aforesaid background, matter to come up for consideration on 24/09/2021.
[NITIN W. SAMBRE, J.] 3/3