Bombay High Court
Iqbal Ahmed Mohammad Haroon vs Iqbal Ahmed Mohd. Yusuf, Through Lrs And ... on 9 March, 2022
Author: N.R. Borkar
Bench: N.R. Borkar
Digitally signed
by CHITRA
CHITRA SANJAY
SANJAY SONAWANE
SONAWANE Date:
2022.03.10
15:32:49 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO.7374 OF 2014
Iqbal Ahmed Mohammad Haroon .... Petitioner.
Vs.
Iqbal Ahmed Mohd. Yusuf
through LR's & Ors. .... Respondents.
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Mr.Sagar Kasar a/w Ms Chaitali Bhogle a/w Dnyaneshwar Jaibhave for
petitioner.
Mr. Anilkumar K. Patil for respondent nos.2, 3, 4-A to 4D.
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CORAM : N.R. BORKAR, J.
DATE : 9th MARCH, 2022.
P.C.:
1. This petition takes an exception to the order dated 22.1.2014 passed
by the 4th Joint Civil Judge, Junior Division, Malegaon in C.M.A.
no.67/1993.
2. The petitioner herein had filed R.C.S.No.59/1991 against the
respondents for perpetual injunction and declaration. The said suit was
filed through Advocate Samad Y.Ansari. In the said suit, the petitioner had
filed an application for temporary injunction. The said application was
allowed on 16.12.1991 and respondents were restrained from interfering
with the possession of the petitioner over the suit property. According to
the petitioner, the suit was then adjourned to 28.06.1993. According to the
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petitioner, on 03.04.1993 one Advocate-V.T.Rokade filed his Vakalatnama
with forged signature of the petitioner. According to the petitioner on the
very same day, the said Advocate Shri V.T.Rokade, made an application with
prayer that matter be taken on board. It is alleged that said Advocate Shri
V.T.Rokade on the very same day submitted pursis to withdraw the suit with
forged signature of the petitioner. According to the petitioner, in view of
pursis, the trial court had dismissed the suit by its order dated 06.04.1993.
3. The petitioner after coming to know about dismissal of the suit, had
filed an application for restoration of the suit by recalling the order dated
6.4.1993. The trial court rejected the said application by the order
impugned.
4. I have heard the learned Counsel for the petitioner and the learned
counsel for the contesting respondents.
5. The learned counsel for the petitioner submits that the interim
injunction was operating in favour of the present petitioner. It is submitted
that prior to assigned date, the application was moved to take the matter
on board and suit was withdrawn by filing withdrawal pursis with forged
signature of the petitioner and by impersonation. It is submitted that the
trial court lost sight of these facts and committed an error in rejecting the
application for restoration of the suit.
6. On the other hand, learned counsel for respondent submits that the
learned trial court in absence of any material to show that the suit was
withdrawn by playing fraud, was justified in rejecting the application. It is
submitted that the withdrawal pursis was filed in view of amicable
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settlement between the parties. It is submitted that no interference is thus
called for in the impugned order.
7. It appears that notice of present petition was issued to Advocate Shri
Rokade. However, he is reported to be no more. Admittedly, suit was filed
through Advocate Samad Y. Ansari. It is not the case of the contesting
respondents that no objection from Advocate Samad Ansari was obtained
by Advocate Shri V.T. Rokade before filing his Vakalatnama. According to
the contesting respondents, suit was withdrawn in view of amicable
settlement between the parties. The respondent no.3 has admitted in his
cross examination that the terms of settlement were reduced into writing.
However, the respondents have not produced any such documents on
record.
8. It would be, therefore, appropriate to set aside the order impugned
and to restore the suit to its original file. In the result, following order is
passed.
ORDER
1. Petition is allowed.
2. Order impugned dated 22.1.2014 is quashed and set aside.
3. The application filed by the petitioner i.e. C.M.A. No.67/1993 is allowed and consequently order dated 6.4.1993 passed by the trial court in R.C.S. No.59/1991 is set aside and the suit is restored on the file of the trial court.
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4. As the suit is of the year 1991, the trial court shall endeavour to decide the suit as early as possible and in any case within one year from the date of receipt of copy of this order.
5. Needless to mention that the trial court shall decide the suit on its own merits.
(N.R. BORKAR, J.) Chitra Sonawane