W.P.No.6556/2010 and W.P.No.6564/2010
Devesh Khandelwal Smt. Kashmira Kaur and another
Brij Kishore Khandelwal Col. Sarabjeet and another.
9.8.2010.
Shri R.P.Agrawal, the learned Senior Advocate with Shri
Sharad Gupta, Counsel for the petitioner.
Shri Himanshu Mishra, Counsel for respondent no.1.
Shri R.K.Sanghi, Counsel for respondent no.2.
As the controversy involved in both W.P.nos.6556/2010
and 6564/2010 is the same based on similar facts, both the
petitions are decided by this common order.For the convenience,
facts are taken from W.P.No.6556/2010.
This petition is directed against an order dated 19,4.2010
passed by XII Additional District Judge, Jabalpur in Civil Suit
No.8-A/2009 by which an application filed by the plaintiff under
Order 6 Rule 17 of C.P.C was rejected.
Though the learned counsel for the petitioner submitted
that he be permitted to confine his prayer by amending the
pleadings to the following extent:
“The defendant no.2 had prior knowledge of
the agreement dated 5.5.2007 entered into
between the plaintiff and the defendant no.1 as
also about pendency of demarcation proceedings
initiated by defendant no.1 before the Naib
Tahsildar, Jabalpur in respect of the suit land and
yet he purchased the same in collusion with
defendant no.1. Even otherwise also he did not
make usual inquiries before purchase of property
and hastily got the sale deed executed in his favour
on 23.6.2008 -after the institution of the suit-
thereby pretending to overcome the applicability of
Section 52 of the Transfer of Property Act.”
But subsequently submitted that he may be permitted to
withdraw this petition with liberty to move a fresh application by
furnishing particulars in respect of knowledge of defendant no.2 in
respect of the agreement in favour of the plaintiff and with this
liberty this petition may be permitted to be withdrawn.
Though S/Shri R.K.Sanghi and Himanshu Mishra
appearing on behalf of respondents opposed the prayer, but
W.P.No.6556/2010 and W.P.No.6564/2010
Devesh Khandelwal Smt. Kashmira Kaur and another
Brij Kishore Khandelwal Col. Sarabjeet and another.
considering the fact that the petitioner by the aforesaid
amendment wants to raise his specific plea that the defendant
no.2 was having knowledge in respect the agreement in favour of
the plaintiff, purchased the property and in this regard wants to
furnish material particulars before the Court below, we allow the
prayer made by the petitioner and permit the petitioner to
withdraw this petition with liberty to move a fresh application
before the trial Court. In case such an application is filed, the trial
Court after hearing both the parties shall consider and decide the
application in accordance with law.
It is also made clear that dismissal of the earlier application
will not come in the way of the petitioner to decide the application,
which shall be considered by the trial Court in accordance with
law on merits of the application.
It is also submitted by Shri Agrawal that proviso to Order 6
rule 17 C.P.C will not be applicable as this case was not fixed for
evidence and was at a preliminary stage. So the proviso to Order
6 rule 17 C.P.C has wrongly been applied by the trial Court and
the case is squarely covered by the decision of the Supreme
Court in the case of Baldev Singh and another vs. Manohar
Singh : 2006 SC 2832.The petitioner is permitted to raise this
contention before the trial Court, who will consider the issue if
raised and pressed. No order as to costs.
Certified copy as per Rules
(Krishn Kumar Lahoti) (J.K.Maheshwari)
Judge Judge
JLL
