Allowed

Vijay Vithoba Sanap v. Sagarmal Khangarmal Jain and Ors.

Bombay HC20 Mar 2024WP/3888/2024

Case brief

AI extract

What is this about?

Single judge Writ Petition allowed. Petitioner Brother's suit against respondents involves property encroachment where sisters later conveyed right to him but now challenged that transfer. Court quashed impugned order permitting amendment, allowed withdrawal of application, and granted liberty to file fresh application before Trial Court incorporating all subsequent facts.

What did the court decide?

Impugned order quashed; amendment application allowed to be withdrawn; liberty granted to petitioner to file fresh application under Order VI Rule 17 CPC incorporating subsequent facts

Vijay Vithoba Sanap Vs Sagarmal Khangarmal Jain and Ors. — Property and Title | Bombay HC (2024)

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Ajay

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 3888 OF 2024

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Vijay Vithoba SanapPetitioner (Orig.
..Plaintiff No.7)

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Versus
Sagarmal Khangarmal Jain and Ors. ..Respondents

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Mr. Rohit D. Joshi, Advocate for Petitioner.

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CORAM:MILIND N. JADHAV, J.
DATE:MARCH 20, 2024.

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P.C.:

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1. Heard Mr. Joshi, learned Advocate for Petitioner.

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2. At the outset, Mr. Joshi, in his usual fairness would inform

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the Court that apart from the subsequent developments he desires to

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incorporate in the Suit proceedings by the Plaintiffs, further
developments have taken place which were not part of the Application
filed by the Plaintiffs under Order VI Rule 17 of the Code of Civil
Procedure, 1908 (for short “CPC”).

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3. He would submit that the Suit is filed by 7 Plaintiffs, namely Plaintiff Nos.1 to 6 who are the sisters and Plaintiff No.7 who is their brother. The present Writ Petition is filed by Plaintiff No.7 i.e. brother only. Plaintiff Nos.1 to 6 are arrayed as Respondents in the present Writ Petition. He would submit that the Suit is filed against Defendants

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for removal of encroachment since it is the Plaintiffs’ case that in the
Suit plaint that Defendants have encroached upon the properties
belonging to the Plaintiffs and are also constructing on the said
properties. He would submit that subsequent to the filing of the Suit in
the year 2019 as also after filing of the Application under Order VI
Rule 17 of the CPC seeking amendment, further developments have
taken place. Firstly, he would inform the Court that the Application
under Order VI Rule 17 of the CPC sought incorporation of an
amendment in the Suit plaint to the effect that after the filing of the
Suit proceedings, Plaintiff Nos.1 to 6 had by a registered sale deed
conveyed their entire undivided right, title and interest in the Suit
property as also all other properties belonging to them in favour of
Plaintiff No.7. Hence in that view of the matter, Application under
Order VI Rule 17 of the CPC was filed by the Plaintiffs seeking to
incorporate this subsequent event and also to incorporate a prayer to
the effect that in the event if Plaintiffs succeed then in that event the
encroached portion shall be handed over to the Plaintiff No.7 only and
not to all 8 Plaintiffs.

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4. However, Mr. Joshi would next submit that pursuant thereto the sisters namely Plaintiff Nos.1 to 6 have resiled from the registered sale deed and have filed proceedings in the Civil Court to challenge the transfer of their properties including the Suit property as also other properties in favour of Plaintiff No.7 and have filed appropriate

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proceedings. He would submit that, in that view of the matter, there is
a clear distinction between Plaintiff Nos.1 to 6 on the one hand and
Plaintiff No.7 on the other hand in so far as the Suit property is
concerned. He would submit that due to Plaintiff Nos.1 to 6 having
filed the Suit against Plaintiff No.7, that decision would now govern
the rights of Plaintiffs. He would therefore fairly submit that, in that
view of the matter, the relief in the Application filed under Order VI
Rule 17 of the CPC would no longer survive due to the further
subsequent events and even that leave would be subject to the
outcome of the Civil Court proceedings filed by Plaintiff Nos.1 to 6
against Plaintiff No.7.

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5. After perusing the impugned order and the submissions advanced by Mr. Joshi, I have impressed upon the Petitioner i.e. Plaintiff No.7 that, if Plaintiff No.7 is inclined to incorporate all subsequent events including the fact that Plaintiff Nos.1 to 6 have approached the Civil Court with respect to cancellation of the sale deed in respect of the Suit property as also or all other steps taken thereafter then in that event Plaintiff No.7 i.e. Petitioner before me can be given liberty to approach the learned Trial Court with a fresh Application.

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6. The suggestion made by this Court has been accepted by Mr. Joshi. In that view of the matter, the impugned order dated 04.08.2023 is quashed and set aside and the Application filed under Order VI Rule 17 of the CPC is allowed to be withdrawn as that

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Application does not incorporate the entirety of the facts which
however occurred subsequently. Plaintiffs are permitted to withdraw
that Application and in view of the subsequent facts, Plaintiff No.7 is
now granted liberty by this Court to file an appropriate Application
under Order VI Rule 17 of the CPC including the Application for
seeking transposition of the Plaintiff Nos.1 to 6, if so desired by him
and if so permissible in law before the learned Trial Court and if any
such Application is made by Plaintiff No.7, the same shall be decided
by the learned Trial Court strictly on its own merits and in accordance
with law after hearing all concerned parties in the present proceedings.

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7. Without delineating and opining on any merits of the matter as also findings returned by the learned Trial Court in its order dated 04.08.2023, all contentions of the parties are expressly kept open with liberty to the Writ Petitioner – Plaintiff No.7 to take out an appropriate Application under Order VI Rule 17 of the CPC or any other Application as available to him in law and prosecute the same before the learned Trial Court in Regular Civil Suit No.54 of 2019.

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8. With the above directions, Writ Petition is allowed and disposed.

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Ajay

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Digitally signed AJAYTRAMBAK by AJAYTRAMBAKUGALMUGALE UGALMUGALE Date: 2024.03.21 19:30:55 +0530

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Vijay Vithoba Sanap v. Sagarmal Khangarmal Jain and Ors.

Case brief

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Vijay Vithoba Sanap v. Sagarmal Khangarmal Jain and Ors.

Case brief

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