Bombay High Court
Shri Prabhakar S/O Motiram Bhange And 10 ... vs M/S Prathmesh Enterprises, ... on 19 November, 2018
Author: Z.A.Haq
Bench: Z.A.Haq
Judgment 1 wp5178.12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5178/2012
1] Shri Prabhakar S/o Motiram Bhange,
Aged about 59 years, Occu. Business,
R/o. Flat No. 35/7, Priyadarshani Nagar,
Near R.T.O. Office, Nagpur
2] Smt. Dropadabai Wd/o Parasram Bhange,
Aged about 68 years, Occu. Household,
3] Sou. Satyabhamabai Wd/- Vinayak Kamble,
Aged about 78 years, Occu. Household,
4] Sou. Vatchhalabai W/o Jagdish Shambharkar,
Aged about 71 years, Occu. Household,
Dead Thru LR's
4a) Ku. Rekha D/o Jagdish Shambharkar,
Aged about 40 years, Occu. Service,
R/o. Maharaja Tower, 502, 5th Floor,
Krida Chowk, Hanuman Nagar,
Nagpur
Amended as per Court's order
dated 18/11/2014
5] Smt. Kanta W/o Vinayak Bhange,
Aged about 57 years, Occu. Household,
6] Shri Sharad S/o Vinayak Bhange,
Aged about 33 years, Occu. Business,
7] Shri Hemant S/o Vinayak Bhange,
Aged about 31 years, Occu. Business,
8] Shri Manoj S/o Babulal Bhange,
Aged about 33 years, Occu. Business,
9] Shri Sumit S/o Babulal Bhange,
Aged about 31 years, Occu. Business,
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Judgment 2 wp5178.12.odt
10] Smt. Pushpa Wd/o Babulal Bhange,
Aged about 63 years, Occu. Household,
11] Ku. Jyotsna D/o Babulal Bhange,
Aged about 30 years, Occu. Education
All Nos. 2 to 11, R/o. Imambada Chowk,
Great Nag Road, Sardar Patel Timber
Market, Nagpur, Through its Power of
Attorney- Holder No. 1
.... PETITIONER(S)
// VERSUS //
1] M/s. Prathmesh Enterprises,
Represented through its partners
Shri Pankaj Vitthaldas Tapadia and
Shri Satnam Singh S/o Gurudeep Singh
Sokhi, Prathmesh Tower, 1380, Central
Avenue, Dyma Sadan, behind Hotel Janak,
Gandibagh, Nagpur
2] Shri Satnam Singh S/o Gurudeep Singh Sokhi,
Aged about 35 years, Occu. Business,
3] Shri Pankaj S/o Vitthaldas Tapadia,
Aged about 31 years, Occu. Business
.... RESPONDENT(S)
___________________________________________________________________
None for the petitioners
None for the respondents
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : 19/11/2018
ORAL JUDGMENT :
1] None appeared for the petitioners as well as for the respondents, when the matter is called out.
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Judgment 3 wp5178.12.odt 2] The respondents (plaintiffs) have filed Special Civil Suit
No. 93/2011 praying for decree for the following reliefs:-
" A) To declare that the Plaintiffs are lawful owners of the suit property being first purchasers and having entered into an agreement in respect of the suit property prior to that of Deft. Nos. 1 to 11 and therefore, the Plaintiffs are lawful owners by virtue of sale deed dtd. 29/07/2008 and same is not hit by Lis Pendence, in view of the necessity of compulsory registration of Lis Pendence within the provisions of Sec. 52 (1) of the Transfer of Property Act. B) To declare that the Decree passed in Spl. C.S. No. 402/1992 and first appeal no. 635/1994, is not binding upon the Plaintiffs since it is not passed against the Plaintiffs and neither the sale deed of the Plaintiffs is decided by the said decree nor the possession of the Plaintiffs of the suit property is directed to be given to the Deft. Nos. 1 to 11 and to declare that sale deed given to the Deft. Nos. 1 to 11 on 29/10/2009 by the court in S.D. No. 42/1994 is not binding upon the Plaintiffs.
C) The Defendants, their agents, servants, assigns etc. be permanently restrained from entering into the suit property or alienating the suit property. D) The Defendants, their agents, servants, assigns etc. be restrained from entering into the suit property or alienating the suit property during the ::: Uploaded on - 24/11/2018 ::: Downloaded on - 24/11/2018 23:59:15 ::: Judgment 4 wp5178.12.odt pendency and till the decision of this Suit and Temporary Injunction to that effect be issued.
E) Regular Civil Suit No. 944/09 before Hon. 34th Joint Civil Judge, Jr. Div., Nagpur be transferred before this Hon. Court and be tried together with the instant suit.
F) Cost of the litigation may be saddled upon the Defendants. G) Any other relief which this Hon. Court deems fit in the facts & circumstances of the case may be granted to the Plaintiffs in the interest of justice."
3] In this civil suit, the defendant nos. 1 to 11 (present petitioners) filed an application (Exh. 40) under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 praying that the plaint be rejected. The defendant nos. 1 to 11 prayed for rejection of the plaint as according to them, the claim of the plaintiffs in Spl. Civil Suit No. 93/2011 is barred by res-judicata. According to the defendant nos. 1 to 11, the sale-deed in respect of the suit property was executed and registered in their favour on 15/10/2009 in Special Darkhast No. 42/1994, and they were put in possession of the suit property by the bailiff.
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Judgment 5 wp5178.12.odt 4] According to the respondents (plaintiffs), the defendant nos. 1
to 11 got the sale-deed executed by suppressing the relevant facts. According to the plaintiffs, the defendant nos. 1 to 11 had suppressed from the Executing Court that the plaintiffs have legal right and interest in the suit property. The respondents (plaintiffs) claim that the sale-deed executed in favour of the defendant nos. 1 to 11 is nullity in the eye of law. According to the plaintiffs, the defendant nos. 1 to 11 had not registered their objection with the Sub-Registrar, and the fact that the suit was pending was not informed to the Sub-Registrar, and therefore the subsequent sale cannot be said to be invalid. According to the plaintiffs, the decree for specific performance passed in favour of the defendant nos. 1 to 11 is not binding on the parties. The plaintiffs claim that their transaction is prior in time than the alleged transaction in favour of the defendant nos. 1 to 11. 5] After considering the rival contentions, the learned trial Judge has rejected the application (Exh. 40) filed by the defendant nos. 1 to 11 observing that the issues which arise for consideration will have to be decided on merits after granting opportunity to the parties to lead evidence. The learned trial Judge has observed that the plaintiffs were shown as the owner of the suit property in the record when the sale-deed is executed in favour of the defendant nos. 1 to 11 on 29/07/2008. The learned trial Judge has recorded that the issue as to whether the sale-deed executed in favour of ::: Uploaded on - 24/11/2018 ::: Downloaded on - 24/11/2018 23:59:15 ::: Judgment 6 wp5178.12.odt the defendant nos. 1 to 11 is hit by the doctrine of Lis Pendence will have to be decided after giving opportunity to the parties to lead evidence. 6] After examining the matter, I find that the conclusions of the learned trial Judge are proper and cannot be faulted with. The issues raised by the defendant nos. 1 to 11, based on the doctrine of Lis Pendence and res- judicata will have to be decided after granting opportunity to the parties to lead evidence and to prove their case. The plaint cannot be rejected, at the threshold, under Order 7 Rule 11 (d) of the Code of Civil Procedure, as prayed for by the defendant nos. 1 to 11.
7] I find that the learned trial Judge has not committed any patent illegality or any error of jurisdiction nor the learned trial Judge has failed to exercise the jurisdiction vested in him or has exceeded his jurisdiction while passing the impugned order.
I see no reason to interfere with the impugned order. 8] The writ petition is dismissed. In the circumstances, the parties to bear their own costs.
JUDGE Ansari ::: Uploaded on - 24/11/2018 ::: Downloaded on - 24/11/2018 23:59:15 :::