Quashed

Deepak Kailas Patil v. Anna Gulab Kamble and Others

Bombay HC13 Jun 2024WP/5446/2024

Case brief

AI extract

What is this about?

The High Court set aside trial and district court orders granting injunctions against the petitioner in a partition suit. The writ court held that the orders were impermissible because the trial court recorded findings and passed injunctions against a specific defendant (the alleged original seller) without serving summons or hearing him.

What did the court decide?

Impugned orders dated 08.05.2024 and 23.01.2024 are set aside to the extent of the present petitioner.

Deepak Kailas Patil Vs Anna Gulab Kamble and… — Civil Procedure and Limitation | Bombay HC (2024)

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2024:BHC-AUG:10875

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913-WP-5446-2024+.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

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WRIT PETITION NO. 5446 OF 2024

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Deepak Kailas Patil
VERSUS

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Anna Gulab Kamble And Others

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...

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Mr. M. S. Deshmukh a/w Mr. U. B. Gite, Advocates for
the Petitioner

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Mr. Y. A. Jadhav, Advocate for Respondent No. 1

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...

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CORAM:R.M. JOSHI, J
DATE:JUNE 13, 2024

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PER COURT :

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1.By consent of the both sides, heard finally at

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the admission stage.

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2.The facts as they reveal from the record are

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peculiar in nature. The Respondent has filed suit
bearing Special C. S No. 13/2023 for partition and
cancellation of sale deeds executed by the father of
the Plaintiff. It is the contention of the Plaintiff
that his father without any authority executed
registered sale deed dated 16.01.2006 in favour of
Defendant No. 5 – Om Sainath Baba @ Om Shri Sainath. It
is further case of the Plaintiff that the Petitioner

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i.e., Defendant No. 6 has purportedly purchased the

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Page 1of 4

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913-WP-5446-2024+.odt

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portion of the suit property by entering into the sale
transaction with Defendant No. 5.

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3.Learned trial Court took up application Exh. 5
for hearing on the basis of pursis filed by the
Plaintiff that no relief is sought against Defendant
No. 5. Though it is so, perusal of the order passed by
the learned trial Court indicates that the entire
findings are recorded against the Defendant No. 5
holding that he has failed to appear in the proceedings
and the alleged inconsistencies in his signatures on
the documents in question and these observations are
made basis to pass order of injunction against
Petitioner. From the entire order passed by the learned
trial Court it does not appear that there is any other
reason than the observations made against Defendant No.
5 is recorded to pass order of injunction.

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4.A specific query is raised by this Court with
the learned Counsel for Respondent No. 1/Plaintiff as
to whether the Defendant No. 5 was served before the
trial Court. Candid response to the same is in
negative. It is pertinent to note that the Defendant

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Page 2of 4

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913-WP-5446-2024+.odt

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No. 5, who as per case of Plaintiff has allegedly
executed registered sale deed in favour of Defendant
No. 6, is not served before the trial Court and
obviously his say is not obtained as to the factum of
execution of the said document. Without any such plea
of Defendant No. 5, learned trial Court has proceeded
to record findings against him. This is wholly
impermissible as it flouts the basic principles of
natural justice. Learned District Court has also failed
to take into consideration the said vital and important
aspect that no findings could have been recorded by the
learned trial Court against Defendant No. 5 for passing
injunction against Defendant No.6 without hearing
Defendant No. 5.

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5.It would be altogether different situation if
the Defendant No. 5 is served as per procedure laid
down by law and he remains absent before Court. In such
circumstances, the Court may be justified to draw
adverse inference of his absence and to record
appropriate findings supported by other material placed
on record. As such, in considered view of this Court
the order passed by the learned trial Court and

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Page 3of 4

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913-WP-5446-2024+.odt

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confirmed by the learned District Court is not
sustainable for want of service of suit summons on
Defendant No. 5.

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6.In the result, impugned orders dated

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08.05.2024 and 23.01.2024 cannot be sustained and

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hence, are set aside to the extent of present
Petitioner.

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7.Needless to record that after service of suit
summons on Defendant No. 5, it would be open for the
learned trial Court to entertain any application filed

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by the parties for its decision as per law.

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Malani

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Deepak Kailas Patil v. Anna Gulab Kamble and Others

Case brief

What is this about?

What did the court decide?

Deepak Kailas Patil v. Anna Gulab Kamble and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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