M/S. Amar Builders vs Champalal Indraraj Sand Alias… — Writ and Judicial Review | Bombay HC (2025)

M/S. Amar Builders vs Champalal Indraraj Sand Alias… — Writ and Judicial Review | Bombay HC (2025)

What the court decided

AI extract

Outcome

Impugned order dated 4th August 2018 passed by the learned District Judge-5, Pune below Exhibit-56 in Civil Appeal No.9 of 2009 quashed and set aside; Exhibit-56 Application restored to the file of the learned Appellate Court; all contentions on merits expressly kept open; writ petition disposed of with no order as to costs.

Issue for consideration

Whether the order dated 4th August 2018 passed by the learned District Judge-5, Pune below Exhibit-56 in Civil Appeal No.9 of 2009, rejecting the Exhibit-56 Application (seeking impleadment of all occupants) solely in view of the order passed below Exhibit-54 and without considering its merits, was sustainable, and whether the Exhibit-56 Application ought to be restored for consideration on its own merits.

Court's answer

The Exhibit-54 Application (delay condonation for filing cross-objection) and the Exhibit-56 Application (impleadment of occupants) are totally different in their merits; therefore the rejection of the Exhibit-56 Application merely in view of the order passed below Exhibit-54 conflated two unrelated applications.

Ratio / Principle

The Exhibit-56 Application was rejected without considering the merits of that Application; the Petitioner's contention to this effect is correct.

Key takeaways

The order dated 4th August 2018 passed by the learned District Judge-5, Pune below Exhibit-56 in Civil Appeal No.9 of 2009 is quashed and set aside, and the Exhibit-56 Application pending before the learned Appellate Court is restored to the file of the learned Appellate Court.ratio¶¶18
This Court has not considered the merits of the Exhibit-56 Application; all contentions on merits are expressly kept open.obiter¶¶20

Detailed headnote1 paragraphs

Constitution of India – Article 227 – Writ Petition against order dated 4th August 2018 of learned District Judge-5, Pune rejecting Exhibit-56 Application in Civil Appeal No.9 of 2009 (praying impleadment of all occupants as parties to the Appeal) solely 'in view of order passed below exh.54', Exhibit-54 being an Application for delay condonation in filing cross-objection – merits of Exhibit-54 and Exhibit-56 Applications being totally different, rejection of Exhibit-56 Application without considering its own merits is unsustainable – impugned order quashed and set aside – Exhibit-56 Application restored to the file of the learned Appellate Court – this Court has not considered merits of Exhibit-56 Application and all contentions on merits expressly kept open – Writ Petition disposed of with no order as to costs.

12-WP-5964-2024.DOC

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

Digitally signed by WRIT PETITION NO.5964 OF 2024 SONALI SONALI MILIND MILIND PATIL M/s. Amar Builders …Petitioner PATIL Date: 2025.01.2809:28:39 A Proprietory Firm through its Proprietor +0530 Amar H. Manjrekar

Versus

Champalal Indraraj Sand alias Rahtekar & Ors. …Respondents

Mr. Nachiket V. Khaladkar, Advocate, for the Petitioner. Mr. S. S. Kanetkar, Advocate, for the Respondent No.1 to 5.

CORAM: MADHAV J. JAMDAR, J. DATED : 27^th JANUARY 2025

P. C.:

Heard Mr. Khaladkar, learned Counsel appearing for the

Petitioner and Mr. Kanetkar, learned Counsel appearing for the Respondent Nos.1 to 5.

By the present Writ Petition filed under Article 227 of the Constitution of India, the challenge is to the order passed below Exhibit 56 in Civil Appeal No.9 of 2009. The impugned order reads as under:

“In view of order passed below exh.54, this application (exh.56) rejected.”

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Sonali

12-WP-5964-2024.DOC

The said Exhibit-56 Application has been filed inter alia praying that all the occupants be impleaded as party to the said Appeal. The Application bearing Exhibit-54 was filed for delay condonation in filing cross-objection. Thus, merits of the said Exhibit-54 Application and Exhibit-56 Application are totally different.

Mr. Khaladkar, learned Counsel appearing for the Petitioner is right in contending that said Exhibit-56 Application has been rejected without considering the merits of the said Application.

Accordingly, the order dated 4^th August 2018 passed by the learned District Judge-5, Pune below Exhibit-56 in Civil Appeal No.9 of 2009 is quashed and set aside and the said Exhibit-56 Application in said Civil Appeal No.9 of 2009 pending before the learned Appellate Court is restored to the file of the learned Appellate Court.

It is clarified that this Court has not considered the merits of

Exhibit-56 Application and all contentions on merits are expressly kept open.

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Sonali

12-WP-5964-2024.DOC

The Writ Petition is disposed of in above terms with no order

as to costs.

[MADHAV J. JAMDAR, J.]

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Sonali