1 SNS IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL APPLICATION NO.265 OF 2010 WITH CIVIL REVISION APPLICATION STAMP NO.18838 OF 2010 M/s. Mahavir Realtors A partnership firm incorporated under the Indian Partnership Act, 1932 and having their registered office at R.D.Shah Compound, Village: Netivali Tal: Kalyan, Dist. Thane. ...Applicant. v. 1 M/s. Rajshree Shelters Pvt. Ltd. Formerly known as M/s.Rajshree Builders & Developers (India) Pvt. Ltd., a Company incorporated and registered under the Companies Act, 1956 and having its office at D-2, Panchavati, M.G.Road, Ghatkopar (E), Mumbai-77 2 Shri Ravji Dhanji Shah For self and as Karta of Dhanji Shah HUF, an adult Indian Inhabitant, Occ: Business, Residing at: Flat No.204, B-1 Wing, Rajshree Asha Co-operative Hsg. Society Ltd., Tejpal Nagari, Netivali, Kalyan (E)- 421 306 3 Smt. Sudha Naresh Shah An Adult, Indian Inhabitant, Occ: Housewife, at present residing at Chawl No.39, R.D.Shah Compound, Tejpal Nagari, Shilphata Road, Netivali, Kalyan (E)- 421 306 4 Master Umang Naresh Shah 2 5 Miss Nirali Naresh Shah, Nos.4 and 5 both being minors through their Mother and Natural Guardian Smt. Sudha Naresh Shah, residing at Chawl No.39, R.D.Shah Compound, Tejpal Nagari, Shilphata Road, Netivali, Kalyan (E)-421 306 6 Smt. Meena Vallabhaji Prasad, An adult, Indian Inhabitant, Occ: Housewife, residing at 201, Anjel Apartment, Opp: National School, Bhati Pada Road, Bhandup (W), Mumbai 400 078 7 Shri Girish Ravji Shah, An adult, Indian Inhabitant, Occ: Business, residing at Flat No.204, B-1 Wing, Rajshree Asha Co-op. Hsg. Society Ltd., Tejpal/Nagari, Netivali, Kalyan (E)- 421 306 8 Shri Deepak Ravji Shah An adult, Indian Inhabitant, Occ: Business, Residing at Flat No.204, B-1 Wing, Rajshree Asha Co-op. Hsg. Society Ltd., Tejpal/Nagari, Netivali, Kalyan (E)- 421 306 9 Kalyan Dombivli Municipal Corporation, A body constituted under the provisions of Bombay Provincial Municipal Corporations Act, having its registered office at Kalyan (W), Tal. & Dist. Thane. ...Respondents. 3 Mr. N.V.Walawalkar Sr.Counsel i/by S.M.Sabrad, advs., for the Applicant. Mr. Nitin Mulye, adv. for the respondent no.1. Ms Suvarna Avhad-Vast i/by Shri A.S.Rao, advs. For the R.No.9. CORAM : J.H.Bhatia, J. DATE : 29th September, 2010 ORAL JUDGMENT: 1 All the respondents are served and represented, therefore, Rule. Rule made returnable forthwith. 2 Heard the learned counsel for the parties. 3 For the reasons, which are going to be discussed for the purpose of deciding the civil revision application, civil application for condonation of delay is allowed and delay is condoned. Revision application be registered. 4 Respondent no.1 filed Special Civil Suit No.325 of 2008 in the Court of Civil Judge Senior Division, Kalyan for specific performance of a contract for development of certain property. In that suit, defendant nos.1 to 7 had filed an application Ex.28 while defendant no.8, i.e., the present applicant had filed application Ex.36. Both these applications were about insufficient valuation of the suit and payment of Court fee under the Bombay Court Fee Act. Besides, those two applications, defendant no.8 had also filed an application, 4 Ex.79 under Order 7 Rule 11 of the CPC seeking rejection of the plaint mainly on three grounds, (i) That there is a clause for arbitration in the agreement, (ii) Suit was barred by the limitation (iii) Suit for specific performance of the agreement for development is not tenable. Plaintiff had also filed application Ex.5 for temporary injunction. Application Ex.5 for temporary injunction was granted in favour of the plaintiff. Therefore, defendant no.8, had challenged that order in Appeal From Order No.1147 of 2009 before this Court on 25th March, 2010. Said appeal was disposed off by giving certain directions with consent of the learned counsel for the parties. As per that order, while the order of temporary injunction was not disturbed, parties were required to maintain status-quo in respect of two properties being Survey No.2, Hissa No.8 and Survey No.42, Hissa No.1/2. Another direction was given to the trial Court to hear the parties and decide issue of maintenability of the suit under Order VII Rule 11 of the CPC on the basis of application filed by the defendant no.8, which was then pending. 5 Later on, precipe was filed on behalf of the plaintiff/respondent no.1 seeking modification of the order dated 25.3.2010 contending that the issue of maintenability under Order 7 5 Rule 11 was already decided on 18.12.2008 and, therefore, direction given for this on 25.3.2010 be deleted. It was also contended that the order to maintain status-quo in respect of survey no.2, Hissa No. 8 also needed to be deleted. That precipe was disposed off by order dated 10th June, 2010 observing that if the application about the maintenability of the suit under Order VII Rule 11 was already disposed off, it shall be treated as compliance of the order of the Court and, therefore, said direction needed no modification. This Court also rejected prayer to delete direction to maintain status-quo in respect of another property. 6 The learned counsel for the present applicant/defendant no.8 contends that when in that precipe, it was pointed out that the application under Order VII Rule 11 was already disposed off on 18.12.2008 they took search of the record and found that on 18.12.2008, the trial Court had only disposed off applications Ex.28 and Ex.36 under the Bombay Court Fees Act by giving certain directions to the plaintiff. In that order, there was no reference to the application under Order 7 Rule 11 CPC. It is also contended that parties were never heard on the application under Order 7 Rule 11 of the CPC. It was further revealed that on the application, Ex.79, the 6 learned Judge of the trial Court had passed following order on 5.9.2009; “ORDER: The maintenability of the suit, questioned by other defendants, is decided. Hence, this application stands filed.” The learned counsel for the applicant has produced photocopy of the certified copy of the roznama in the suit. Roznama dated 5.9.2009 reveals that orders were passed on certain applications but there is no reference to any order below Ex.79. The learned Senior Counsel for the applicant contended that in view of these circumstances, applicant was not aware that his application Ex.79 was disposed off on 18.12.2008 alongwith the applications, Exs.28 and 36 nor he was aware about the dismissal of application Ex.79 by the order dated 5.9.2009. He came to know about that order when the search of the record was made after the above referred precipe was moved by the plaintiff before this Court. The record fully corroborates the contentions of the plaintiff and the arguments of the learned senior counsel in this respect. For these reasons, it was necessary to condone the delay in filing the revision application. 7 7 Record clearly reveals that prayer in the Exs.28 and 36 was totally different from the prayer made in application Ex.79. While the provisions of Bombay Court Fees Act were to be invoked for the purpose of deciding the applications Exs.28 and 36, application Ex.79 requires consideration of facts and pleadings in the light of Order 7 Rule 11. In the order dated 18.12.2008, whereby applications Exs.28 and 36 were disposed off, there was no reference to any application under Order 7 Rule 11 and, therefore, it can not be said that by the said order, application Ex.79 was disposed off. Thus, the order passed on 5.9.2009 below Ex.79 is clearly against the record. The learned Senior Counsel has also pointed out that there is serious doubt as to whether the order dated 5.9.2009 below Ex.79 was infact passed on that day because if the application Ex.79 would have been disposed off by that order on that day, it should have been recorded in the roznama of that day but roznama is totally silent about that order. 8 The learned counsel for the plaintiff/respondent no.1 tried his best to contend that the conduct of the defendant no.8/applicant indicates that he was participating in the trial of the suit. He had filed written statement, issues were framed and he has also filed list of witnesses. The learned senior counsel pointed out that when this 8 revision application was moved on 4th August, 2010, this Court was not inclined to stay the proceedings and only notice was issued and, therefore, the defendant no.8 was forced to participate in the proceedings. The learned counsel for the plaintiff/respondent also contended that the defendant no.8 was fully aware about the said order and it is not correct that for the first time in July, 2010 during the search of the record, they came to know about the impugned order. I am unable to accept this contention also. If that order was really passed, the learned counsel for the plaintiff must have been aware about the same. However, the order dated 25th March, 2010 passed by this Court, while disposing off the Appeal From Order No. 1147 of 2009, does not indicate that the advocate for the plaintiff was aware about the dismissal of the application, Ex.79. Had he been aware on that day, he would not have given consent for giving direction to the trial Court to hear and dispose off the issue of maintenability of the suit under Order 7 Rule 11. That clearly shows that even the counsel for the plaintiff was not aware about that order till that date. 9 From these facts it is clear that , application Ex.79 was never heard nor it was decided on merits. Order passed by the trial 9 Court on 5.9.2009 is per-se wrong and against the record and, therefore, that order needs to be set aside. 10 For the aforesaid reasons, revision application is allowed. Impugned order purporting to have been passed on 5.9.2009 below Ex.79 is hereby set aside. The trial Court shall hear the parties and dispose off the application Ex.79 on its own merits. Till decision of that application, there shall be stay to the further proceedings in the suit. (J.H.BHATIA, J.)