Quashed

M/S Hawelliwala Land Developers and Builders Thr Proprietor and Anr. v. the State of Mah and Ors.

Bombay HC14 Mar 2013WP/642/2013

Case brief

AI extract

What is this about?

The High Court held that since no prohibitory order was issued against the petitioners and they were not parties to the suit, initiating proceedings under Order 39 Rule 2-A CPC was improper and liable to be quashed.

What did the court decide?

The impugned order rejecting the application to delete the petitioners was set aside, the application under Order 39 Rule 2-A CPC was allowed, and the rule was made absolute.

M/S Hawelliwala Land Developers and Builders… — Civil Procedure and Limitation | Bombay HC (2013)

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UNREPORTED

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IN THE HIGH COURT OF JUDICATURE AT

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BOMBAY

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BENCH AT AURANGABAD.

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WRIT PETITION NO.642 OF 2013.

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1. M/s Hawelliwala Land Developers
and Builders through
Shri Narendra S/o Rikabchand
Chandaliya (Jain), Age 51 years,
Occ.Business, R/o Mitranagar,
Dist.Aurangabad.

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2. Pritesh S/o Vijaykumar Bafana,
Age 34 years, Zcc.Business,
R/o N-3, Cidco, Aurangabad. ... Petitioner.

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Versus

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1. The Stte of Maharashtra,
through its Secretary,
Ministry of Revenue Department,
Mantralaya, Mumbai-32.

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2. The Collector,
Collector Office,
Aurangabad.

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3. The Tahsildar,
Paithan, Tq.Paithan,
Dist.Aurangabad.

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4. The Talathi,
Village Chittegaon, Tq.
Paithan, Dist. Aurangabad.

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5. Deorao S/o Kachru Gidhane,
Age 80 years, Occ.Agri.,
R/o village Chitegaon,

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Tq.Paithan, Dist.
Aurangabad, through its GPA
holder Mr.Suresh Deorao Gidhane.

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6. Smt.Madhuribai W/o Madhukarrao
Shrawnge, AGe 50 years, Occ.
Business, R/o Kelibazar,
Supari Hanuman Mandir Road,
Gulmandi, Aurangabad. ... Respondents.

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Mr.R.K.Khandelwal, advocate for the
Petitioners.

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Mr.V.B.Ghatge, Asstt.Govt. Pleader for the State.
Mr.Ujjwal S. Patil, advocate for the Respondent
No.5.

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Mr.V.D.Sapkal, advocate for Respondent No.6.

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CORAM : S.V.GANGAPURWALA,J.

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 Date : 14.03.2013.

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ORAL JUDGMENT :

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1.Heard.

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2.Rule. Rule returnable forthwith. With
the consent of the parties, the petition is taken
up for final hearing.

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3.The present Respondent No.5 has filed a
suit for injunction. Temporary injunction was
granted in favour of the plaintiff restraining
the defendant from alienating or creating third

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party interest to the extent of 6 ares. During
pendency of the suit, the defendant sold the
property admeasuring 35.24 ares to the present
petitioners. The plaintiff filed proceedings U/o
39 Rule 2-A of the P.C.P. against the defendant
and the present petitioners for violating the
prohibitory orders of the Court.

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4.The petitioners filed application to
delete the name from the array of parties in
proceedings U/o 39 Rule 2-A of the C.P.C. The
said application is rejected. Aggrieved thereby,
the present petition.

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5.Mr.Khandelwal, learned counsel for the
petitioners submits that proceedings U/o 39 Rule
2-A of the C.P.C. can not be proceeded against
the petitioners on two counts. (i) there was no
prohibitory order against the petitioners; and
(ii) the property which he has purchased is
different from the suit property. The Court
without considering the said aspect, has rejected
the application. According the learned counsel,
the proceedings U/o 39 Rule 2-A of the C.P.C.

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against the present petitioners would be an abuse
of the process of law and the Court.

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6.Mr.Patil, learned counsel for the
plaintiff supports the order and submits that the
present petitioners were having knowledge of the
prohibitory orders passed by the Court and still,
have purchased the property knowingly and
willfully. It is deliberate act violating the
orders of the Court. The property purchased by
the petitioners is a part of the suit property
and the Court has considered the said aspect.

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7.Mr.Patil, learned counsel further
contends that the petitioners may change the
nature of the suit property or may further
alienate the property and in view of that fact
also, the proceedings are required to be
continued against the petitioners.

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8.The fact that present petitioners were
not parties to the suit and no prohibitory order
was issued against them is not disputed. In view
of the aforesaid fact itself the application Exh.

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13 ought to have been allowed.

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9.In view of that, I need not enter into
the disputed questions about the identity of the
property purchased by the petitioners and the
suit property.

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10.As far as contention of the learned
counsel for the plaintiff that the petitioners
may again create complications. For the same,
the proceedings U/o 39 Rule 2-A of the C.P.C.
would not be relevant. If the plaintiff feels
that some relief is sought against the present
petitioners then they can file appropriate
application in the suit which application, the
Court can consider on its own merits.

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11.In light of the above, the impugned
order is quashed and set aside and application
Exh.13 is allowed. Rule accordingly made
absolute.

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 (S.V.GANGAPURWALA,J.)

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asp/office/wp64213

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M/S Hawelliwala Land Developers and Builders Thr Proprietor and Anr. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

M/S Hawelliwala Land Developers and Builders Thr Proprietor and Anr. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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