Dismissed

Udayraj Chandanmal v. Ghisulal Punamchandji Munot and 10 Ors.

Bombay HC16 Sept 2016NMS/2744/2016

Case brief

AI extract

What is this about?

In a notice of motion regarding a partition suit, the High Court held that a co-plaintiff in a dismissed partition suit cannot file a fresh suit for the same reliefs. The Justice directed the plaintiff to seek restoration and interim relief in the original City Civil Court suit, dismissed the present suit as withdrawn with refund of fees, and disposed of the notice of motion as infructuous.

What did the court decide?

Suit dismissed as withdrawn with refund of Court Fee; Notice of Motion disposed as infructuous.

Udayraj Chandanmal Vs Ghisulal Punamchandji Munot and 10… — Property and Title | Bombay HC (2016)

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909-NMS-2654-2016.DOC

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JSN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2654 OF 2016

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IN

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SUIT (L) NO.895 OF 2016

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Udayraj Chandanmal
Versus

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Mr. Ghisulal Punamchandji Munot and
others.

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…Plaintiff

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…Defendants

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Mr. Akshay Patil, i/b Mayur Thorat for the Plaintiff.
Mrs. Kavita Ambekar, IInd Assistant to Court Receiver present.

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CORAM:G.S. PATEL, J
DATED:16th September 2016

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PC:-

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1.The Court Receiver appointed in Suit No.4411 of 1985 filed in
the City Civil Court inter alia in respect of the property situate at
Survey No.1A, 221 (Part) City Survey No.587, 587/1 to 587 /11 of
Taluka Kurla, Mumbai suburban District is continued till 14th
October 2016.

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2.That City Civil Court Suit was dismissed by an order dated
22nd June 1999. However that dismissal was only because the

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Page 1 of 4

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16th September 2016

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909-NMS-2654-2016.DOC

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Plaintiff in that Suit and his Advocate were absent on that date. It is
not disputed that the present Plaintiff was the Defendant No.7 in
the Suit, which was for partition. In such a suit, every party is a
plaintiff and every party is a defendant. The Receiver, however, was
not discharged on that day. He came to be discharged by the City
Civil Court only on 4th April 2016 on separate application made for
that purpose and of which the present Plaintiff was given no notice.
It is for this reason that the Court Receiver is continued by today’s
order.

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3.I note for the record the statement made by the Plaintiff that,
after 4th April 2016, the contesting Defendants have purported to
commence development of the property contrary to law and in
defeasance of the present Plaintiff’s rights.

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4.I see no reason why the Plaintiff should have to move this
Court in a fresh Suit when a partition suit inter alia in respect of this
very property was already filed in the City Civil Court. In my view,
it is neither proper nor permissible for a defendant in a partition suit
which was dismissed for whatever reason to simply file a fresh suit
for exactly the same reliefs. Being a partition suit, he was as much a
plaintiff as the person who filed that suit. The present plaintiff, as
Defendant No.7 to that suit in the City Civil Court, should move
that Court for restoration of that suit and for continuation of the ad-
interim relief. Otherwise, if such a practice is permitted, it will lead
to an endless multiplicity of proceedings.

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Page 2 of 4

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16th September 2016

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909-NMS-2654-2016.DOC

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5.The present Plaintiff must therefore move the City Civil
court for the restoration of that City Civil Court Suit No.4411 of
1985; for an order continuing the Receiver and for the grant of
injunction. This application (or applications if more than one) will
be decided on its (or their) own merits. Undoubtedly, the present
Defendants will have to be served and given notice. I am confident
that the City Civil Court will approach the matter in the correct
perspective and, in particular, address itself to the question of
whether a partition suit in which both sides are equally claimants
should ever be allowed to be summarily dismissed for non-
appearance of the plaintiff and his advocate. Such a partition suit
may yet be pursued by a defendant. There is also no doubt that the
City Civil Court will have to carefully consider the delay on the part
of the present Plaintiff (defendant No. 7 before the City Civil Court)
in bringing the application for restoration, receiver and injunction.

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6.I must note that the present Defendants are unrepresented
today though served. Defendant No.9 has refused service. The son
of 1st Defendant is, however, present in Court. He has not engaged
Advocates.

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7.On this basis, the present suit is dismissed as withdrawn.
There will be an order of refund of the full Court Fee.

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8.The Court Receiver will make a report of the present status
on site and place that report before the City Civil Court.

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Page 3 of 4

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16th September 2016

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909-NMS-2654-2016.DOC

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9. In view of this, the Notice of Motion does not survive and is disposed as infructuous.

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(G. S. PATEL, J.)

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Page 4 of 4
16th September 2016

Udayraj Chandanmal v. Ghisulal Punamchandji Munot and 10 Ors.

Case brief

What is this about?

What did the court decide?

Udayraj Chandanmal v. Ghisulal Punamchandji Munot and 10 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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