Bombay High Court
Mr. Rajendra Laxman Khilari And Ors vs M/S. Rainhbow Business Park Premises ... on 20 October, 2022
Bench: G.S. Patel, Gauri Godse
903-FA-446-2015+.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 446 OF 2015
WITH
CIVIL APPLICATION NO. 1476 OF 2015
IN
FIRST APPEAL NO. 446 OF 2015
Rajendra Laxman Khilari & Ors ...Appellants
Versus
Rainbow Business Park Premises Co-operative ...Respondents
Society Ltd & Ors
WITH
CONTEMPT PETITION NO. 166 OF 2016
Rajendra Laxman Khilari & Ors ...Appellants
Versus
Rainbow Business Park Premises Co-operative ...Respondents
Society Ltd & Ors
Mr Sahil Sayyed, i/b Nitin S Parkhe, for the Appellant.
Mr Nishant Tripathi, i/b M Tripathi & Co, for Respondent No.10.
Mr Pankaj Das, for the CIDCO.
ASHWINI
HULGOJI
GAJAKOSH
Digitally signed by
ASHWINI HULGOJI
CORAM G.S. Patel &
GAJAKOSH
Date: 2022.10.31 Gauri Godse, JJ.
11:20:28 +0530 DATED: 20th October 2022 PC:-
Page 1 of 420th October 2022 903-FA-446-2015+.DOC
1. The First Appeal of 2015 is directed against a final order and judgment dated 9th January 2015 passed by the 6th Joint Civil Judge Senior Division, Thane. There were eight Plaintiffs to the Suit.
Their names are (1) Rajendra Laxman Khilari, (2) Devendra Laxman Khilari, (3) Jagarnath R Choudhary, (4) Channulal Gupta, (5) Manikchand Gupta, (6) Bharat Rameshchandra Gupta, (7) Sanjay Dattatray Khose, and (8) Ashok Maruti Kashid. The Suit was for a declaration and an injunction by the eight Plaintiffs.
2. The 1st Defendant was Rainbow Business Park Premises Cooperative Society Ltd. Defendants Nos. 2 to 9 were individuals joined in their capacities as members of the Managing Committee of the 1st Defendant Society. Defendant No. 10 was of enterprise of developers, Haware Engineers and Builders Pvt Ltd. Defendant No. 11 was CIDCO.
3. By the impugned order and judgment, the Trial Court did not return the plaint under Order 7 Rule 10. It did not reject the plaint under Order 7 Rule 11. It held that this was not a case for dismissal of the Suit for any reason under Order 9. Instead, it proceeded to pronounce judgment apparently under Order 20 of the Code of Civil Procedure 1908 ("CPC"). The resultant order was a dismissal of the Suit. All eight Plaintiffs are the Appellants in the First Appeal.
4. Leaving aside any interim orders, it now seems that Appellants Nos. 1 to 6, i.e., Original Plaintiffs Nos. 1 to 6 have entered into Consent Terms with the Original Defendants Nos. 1 Page 2 of 4 20th October 2022 903-FA-446-2015+.DOC and 10. This will obviously include the individuals joined as office bearers. CIDCO's agreement to the Consent Terms is said not to be necessary.
5. The self-evident complication is that Original Plaintiffs Nos. 7 and 8, present Appellants Nos. 7 and 8, are not parties to the Consent Terms and have not agreed to the settlement with Defendants Nos. 1 and 10.
6. We do not see how it is possible for us to pass an order in the First Appeal on the basis of Consent Terms framed in this manner. There is an existing difficulty for the learned Advocate for the Appellants. He will have to take a discharge from Appellants Nos. 7 and 8. They will need to engage fresh representation and then decide whether they intend to prosecute the Appeal. Existing Appellants Nos. 1 to 6 who have settled with Respondents Nos. 1 and 10 will need to be transposed as Respondents to the Appeal.
7. The matter was before us yesterday when we pointed out these issues. We are told that the learned Advocate for the Appellants did contact Appellants Nos. 7 and 8. They are unable to come to Court today but have indicated that they need time to engage fresh representation. That is both reasonable and absolutely necessary. It is only after the learned Advocate who has entered a Vakalatnama or appearance for all the Appellants takes a discharge from Appellants Nos. 7 and 8 and Appellants Nos. 1 to 6 have transposed can there be any form of Consent Terms between the transposed Respondents and existing Respondents Nos. 1 and 10.
Page 3 of 420th October 2022 903-FA-446-2015+.DOC This will undoubtedly have a bearing not only on the Appeal, but, if the Appeal proceeds at the instance of Appellants Nos. 7 and 8, and succeeds, then equally undoubtedly an impact on the Suit as originally framed.
8. We give Appellants Nos. 7 and 8 and the learned Advocate for the Appellants Nos. 1 to 6 time to take the appropriate steps.
9. The matter will be listed for directions on 21st November 2022. It is to be listed high on Board on that date. The Consent Terms are, in these circumstances are not taken on record.
10. Previous orders will continue including the order of status quo against demolition. This is because we do not know what the likely impact is if the commercial shops occupied by Appellants Nos. 1 to 6 are vacated by them and are then demolished. This may well have an impact on the premises occupied by Appellants Nos. 7 and 8 and they will of course need to be heard before such an order is vacated or modified.
11. To ensure that there is no further delay, Registry will issue fresh notice, along with copy of this order to Appellants Nos. 7 and 8 at their addresses given in the cause title of the First Appeal.
(Gauri Godse, J) (G. S. Patel, J)
Page 4 of 4
20th October 2022