1 W.P.5340.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5340 OF 2009
Sk. Naser S/o Sk. Ibrahim,
Age : 45 Years, Occup.: Agriculture,
and business R/o New Kutubpura,
Aurangabad. ...PETITIONER
(Ori. Plff.No.2)
VERSUS
1. Sk. Babu S/o Sk. Ibrahim,
Age :52 Years,Occup.: Agriculture
and Business, R/o M.H.No.(New)
1.11.11, Kutubpura, Aurangabad.
2. Jakaullah Khan S/O Gulam Insar
Khan, Age : 64 Years, Occup.: Nil,
R/o : Lotakaranja, infront of
Naj Book Depot, Aurangabad. ...RESPONDENTS.
(Ori. Plff. No.1 and
Defendant)
...
Shri.A.S.Bajaj,Advocate for Petitioner.
Shri.Sandeep Deshmukh,Advocate for Respondent No.2.
Respondent No.1 though served, remained absent.
...
CORAM: A.V.NIRGUDE, J.
DATE : 27TH APRIL, 2011.
ORAL JUDGMENT :
1. This Writ Petition is filed under Articles 266 and 227 of the
Constitution of India, challenging a very peculiar order dated 1st
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August, 2009, passed by the 2nd Joint Civil Judge (Senior Division),
Aurangabad, in Special Civil Suit No. 547 of 1993. This order was
passed suo-motu by the learned Judge of the trial Court.
. The facts leading to the passing of the impugned order can
be narrated as under:
2. Respondent No.1 filed this Special Civil Suit No.547 of 1993
against respondent No.2 for specific performance of contract for sale
of a piece of land which is quite a sizable one. It was the case of the
respondent No.1/plaintiff that, respondent No.2 agreed to sell this
piece of land for valuable consideration to him, on 19th October, 1991
by executing an agreement in writing. Certain amount was paid as
an earnest amount. Admittedly, respondent No.1 was already in
possession of the suit land, being tenant. The suit continued and at
the fag end, when arguments were about to be heard, the petitioner,
who happened to be the brother of respondent No.1 made an
application to the Court and requested it to implead him as plaintiff
No.2. The original parties to the suit did not oppose this move and
the petitioner was added as plaintiff No.2 to the lis. Soon after,
newly added plaintiff no.2 – petitioner effected certain amendment in
the plaint and brought on record as to why he got interest in the lis.
He pleaded that respondent No.1, has assigned suit agreement to him
for valuable consideration and had already put him in possession
also. The trial Court allowed the amendment and the suit remained
pending for disposal. But after few months, the learned judge of the
trial Court suddenly realized that newly added plaintiff -petitioner
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herein- had no business to be a party to the suit and suddenly
without giving him an opportunity of being heard, he suo-motu set
aside the two orders, by which the petitioner was added as plaintiff
No.2 and petitioner was allowed to amend the plaint. This order is
being challenged here. Thus, the question is, whether this order is
legal?, answer is negative.
3. The learned Judge, firstly, could not have passed this order
without giving an opportunity of being heard to the affected party,
the petitioner. I have no difficulty for the question as to whether the
learned Judge could have exercised discretion to recall the orders
passed earlier in the case, but such exercise could not have
undertaken without hearing the parties to the suit, specially the party
who was likely to be affected by the order.
4. The Second question is, whether order is lawful?. The learned
Judge probably did not read the amended plaint. He did not realize
that petitioner-plaintiff no.2 had come to the Court with specific case
that the interests in the suit agreement were assigned to him by
respondent No.1. In view of this assertion, which prima facie
appears to be truthful/maintainable, the petitioner became a
‘representative in interest’ of the existing party to the suit, namely,
original plaintiff. Section 15 of the Specific Relief Act 1963 allows
such representative in interest of any party to the agreement to sue
for specific performance of such agreement. It is, thus, clear that in
view of the assignment, the petitioner was entitled to be a co-plaintiff
and to continue with lis. This aspect has not been considered by the
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learned Judge. This happened most probably because he did not
hear the submissions of the petitioners before he could pass the
impugned order. In addition to this, a useful reference to the
judgment of the Supreme Court in the case of ShyamSingh Vs.
Daryao Singh (Dead) by L.Rs. And others, (AIR 2004 Supreme
Court, 348) can be made, wherein the Supreme Court held that –
“The Expression ‘any party thereto’ or
‘their representative in interest’ includes
tranferees and assignees from
contracting party in whose favour right
exists”.
5. In view of this, the impugned order deserves to be set aside.
However, since the suit is pending since 1993 and the amendment in
the plaint is effected recently, in 2009. Respondent No.2- defendant
should be given an opportunity to file additional written statement
in respect of additional averments made in the plaint. In case, such
written statement is filed the learned Judge of the trial Court should
frame additional issue/s, if any, and should allow the parties to lead
additional evidence, if necessary.
. Rule made absolute in terms of following order :
ORDER
1. The impugned order dated 01st August, 2009,
passed by the 2nd Joint Civil Judge Senior Division,Aurangabad, in Special Civil Suit No. 547 of 1993
stands set aside.
2. The petitioner stands restored as plaintiff.
3. Respondent No.2- defendant is given liberty
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5 W.P.5340.09to file additional written statement.
4. The learned Judge of the trial Court to decide
this suit in accordance with law.
Sd/-
[ A.V.NIRGUDE, J.]
MTKok
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