Partly allowed

Subhashchandra Chhaganlal Sharma and Another v. Omprakash Chhaganlal Sharma

Bombay HC25 Apr 2013WP/373/2013

Case brief

AI extract

What is this about?

The High Court quashed an order rejecting a petitioners' application to strike out/federal issues in a permanent injunction suit. The writ petition was partly allowed; the impugned order was set aside, and the trial court was directed to delete certain issues if prayer for injunction on alienation is withdrawn, while allowing recasting of the first issue as prayed.

What did the court decide?

Impugned order quashed; issues nos. 4 and 8 to be deleted if prayer (b) deleted; issue no. 1 to be re-casted as prayed.

Subhashchandra Chhaganlal Sharma and Another Vs Omprakash… — Property and Title | Bombay HC (2013)

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2504wp373.13.odt

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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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WRIT PETITION NO.373/2013

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Subhashchandra Chhaganlal Sharma and another ...Versus... Omprakash Chhaganlal Sharma

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- - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders

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Shri U.N. Vyas, Counsel for petitioners Shri C.A. Joshi, Counsel for respondent

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CORAM : SMT. VASANTI A. NAIK, J. DATE : 25.04.2013

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By this petition, the petitioners impugn an order passed by the trial Court on 17.12.2012, rejecting an application filed by the petitioners for striking out issue nos.4 and 8 and recasting issue no.1.

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The petitioners are the original plaintiffs. A suit was instituted by the petitioners for permanent injunction. It was the case of the petitioners that the petitioners were in possession of the suit property and the respondent – defendant was trying to disturb the possession of the petitioners. The petitioners, therefore, sought a permanent injunction, restraining the defendant from interfering with or disturbing the possession of the petitioners over the suit property. The petitioners also sought a permanent injunction, restraining the defendant from transferring or creating any third party interest in the suit property. The case of the petitioners was denied by the

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2504wp373.13.odt

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respondent by filing the written statement. It was pleaded that the suit could not have been filed only for grant of permanent injunction. The defendant claimed ownership over the suit property in pursuance of a sale-deed executed on 29.1.1976. The trial Court framed the issues including the issue nos.1, 4 and 8, which read as under :

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“ Issue No.1 : - Whether the present suit

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for simplicitor injunction without challenging or establishing material document relied upon by the plaintiff is maintainable ?

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Issue No.4 :- Does the plaintiff prove that they are owners of 60% share of suit property ?

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Issue No.8 :- Does the plaintiff prove that sale deed dated 19.1.1976 executed in favour of defendant is void ab-initio ?”

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Since the petitioners had not sought a declaration that they had 60 % share in the suit property and had also not sought a declaration in regard to the validity of the sale-deed dated 29.1.1976, the petitioners sought deletion of issue nos.4 and 8. The petitioners also sought re-framing of issue no.1. According to the petitioners, the trial Court could not have framed issue no.1 as originally framed and instead, the issue ought to have been framed as “Whether the suit simplicitor for injunction is maintainable ?”. The trial Court, however, by the impugned order rejected the application filed by the petitioners.

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It appears on hearing the learned Counsel for the parties that the trial Court was justified in framing issue nos.4

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2504wp373.13.odt

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and 8 as the petitioners had prayed for permanent injunction, restraining the defendant from alienating, transferring or creating any third party interest in the suit property. The permanent injunction could not have been granted by the trial Court without deciding the issue of ownership of the petitioners and the respondent. The learned Counsel for the petitioners, however, states that the petitioners would delete prayer clause (b) in the plaint, whereby the petitioners had sought a permanent injunction, restraining the defendant from alienating the suit property or creating any third party interest therein. If prayer clause (b) in the plaint is deleted, there would be no propriety in framing issue nos.4 and 8 and they could be deleted. So also, it appears that the trial Court did not frame issue no.1 in a proper manner and it ought to have been framed as sought by the petitioners in the application. The issue no.1 ought to have been framed as “Whether the suit simplicitor for injunction is maintainable ?”.

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Hence, for the reasons aforesaid, the writ petition is partly allowed. The impugned order is quashed and set aside. In case, the petitioners delete prayer clause (b) in the plaint, the trial Court may delete issue nos.4 and 8. The application, seeking recasting of issue no.1 is allowed and issue no.1 could be re-casted as desired by the petitioners.

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Order accordingly. No order as to costs.

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JUDGE

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ssw

Subhashchandra Chhaganlal Sharma and Another v. Omprakash Chhaganlal Sharma

Case brief

What is this about?

What did the court decide?

Subhashchandra Chhaganlal Sharma and Another v. Omprakash Chhaganlal Sharma

Case brief

What is this about?

What did the court decide?

What the court decided

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Parties & counsel

Coram

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