In a specific performance suit for agricultural land, petitioners challenged an appellate order refusing directions for additional evidence and issue framing regarding a housing society's dissolution. The court held the society's status was irrelevant to the specific performance claim.
Writ petition dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO. 9552 OF 2017
Dr. Laxman s/o Ramrao Nagargoje and others ...Petitioners
versus
Suresh Premraj Mutha ...Respondent
Mr. A.D. Kasliwal, advocate for the petitioners Mr. P.F. Patni h/f Mr. U.A. Bhadgaonkar, advocate for respondent
CORAM : V. K. JADHAV, J. Date of Reserving the Order : 31.10.2017
Date of pronouncing
the Order: 07.11.2017
PER COURT :-
1. By consent of parties, heard finally at admission stage.
Exh.24 in Regular Civil appeal No. 243 of 2012, by Adhoc District Judge-2, Aurangabad, the original defendants have preferred this writ petition.
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a) The respondent-original plaintiff has filed Special Civil Suit No. 290 of 2001 for specific performance of contract and for perpetual injunction in respect of plot Nos. 1, 6, and 7 in all admeasuring 33 gunthas, situated at Gat No. 105, Nakshtrawadi, Tq. and District Aurangabad. The present petitioners had resisted the suit by filing written statement. Both the parties led their oral and documentary evidence in support of their rival contentions. Learned Joint C.J.S.D. Aurangabad, by its judgment and decree dated 4.4.2007 decreed the suit in terms of its prayer clauses.
b) Being aggrieved by the same, the petitioners preferred Regular Civil Appeal No. 243 of 2012 before the District Court Aurangabad. During pendency of aforesaid appeal, the petitioners filed an application Exh.24 under Order 41 Rule 25 of C.P.C. requesting therein that the issues be framed as stated in the body of application and the same be referred to the trial court for recording the finding on the same and for reverting the findings and reasons on those issues to the appellate court. The learned Adhoc District Judge-2, Aurangabad by its impugned order dated 26.4.2017 rejected the said application Exh.24. Hence, this writ petition.
has not considered the pleading of the parties to the suit. There is
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specific pleading in para 2, 10 and 11 of the plaint that the agricultural land bearing Gat No. 105 at village Nakshtrawadi, Tq. and District Aurangabad, was purchased by 15 persons, including the present defendants and a society was formed and registered as Mitrasangam Sahakari Grihanirman Sanstha for developing the said land. It has been specifically pleaded in the para 10 of the plaint that as per the terms of agreement of sale, it was agreed to execute the sale deed within one month from the date of dissolution of said society. The society came to be dissolved and members become individual owners of various plots. In para para 4 of written statement, the petitioners defendants have denied the contention raised in the plaint and also pointed out that the date of dissolution and details are not given by the plaintiff in the plaint. Learned counsel submits that considering the aforesaid pleading of the parties, the issue of enforcibility of contract is related to the society, its dissolution and as such the issues as mentioned in application Exh.24 are required to be framed, however, the trial court has failed to frame the said issue. The respondent has specifically pleaded that there was G.P.A. in favour of one Vasant Pimplapure and he had executed an agreement to sale as power of attorney. The petitioners have denied the said execution of the power of attorney in favor of said Vasant Pimpalapure. However, the trial court has not framed specific issue in this regard. The authority of execution of agreement
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to sale is going to the root of the matter. The learned counsel submits that however, the lower appellate court lost sight to consider the aforesaid facts. Learned counsel submits that Order XLI Rule 25 comes into operation when the Court, from whose decree the appeal is preferred, has omitted to frame or try any issue, or to determine any question of fact which appears to the appellate court essential for the right decision of the suit upon merits.
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are not framed. Learned counsel submits that the petitionersdefendants never raised any objection for framing of the issues. Even the learned Judge of the trial court has observed that the question of dissolution of the society has no bearing on the issue of specific performance of contract.
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agreement of sale to be executed?
III. Whether on dissolution th ownership was transferred to the members by the society?
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no substance in the writ petition. The writ petition is dismissed. In the circumstances there shall be no order as to costs.
( V. K. JADHAV, J.)
rlj/
3 issues framed by the court
Whether the appellate court was justified in declining to frame issues regarding the dissolution of a society and its effect on a sale agreement under Order 41 Rule 25 CPC.
Whether the dissolution of a housing society formed to develop jointly purchased land is a relevant factor for decreeing a suit for specific performance of contract.
Whether the lower appellate court erred in not directing the trial court to examine the execution of a power of attorney affecting the sale authority.
Colour shows how this judgement treated each authority
Smt. Bachahan Devi and Anr. vs. Nagar Nigam, Gorakhpur and AnrReferred¶26
2008 (2) ALL MR 299
Kasturi vs. Iyyamperumal and Ors.Referred¶31
AIR 2005 SC 2813 · Who else cites this
Narayan Vishwanath vs. Malappa KasappaReferred¶32
AIR 1956 Bombay 246 · Who else cites this
1 provisions across 1 enactments
Dr. Laxman s/o Ramrao Nagargoje and others
Suresh Premraj Mutha
V. K. Jadhav
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
