1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.335 OF 2009 M/s.Career Square & Ors. ..Appellants V/s Mr.Sachin Ratanlal Bhattad & Ors. ..Respondents ---- Mr. V. V. Tulzapurkar Sr. Counsel @ R.D.Soni i/by Ram & Co. for the appellants. Mr.V. B.Thorat Sr. Counsel @ M.M.Satheye for the respondent no.1 Mr .P. S. Dani for the respondent no.2. Mr.S.N. Gawde for the respondent nos.6, 7 & 8. ---- Coram : R.S.MOHITE,J Date : 22.9.2009. PC 1 Heard the Counsel for both sides. In my view, the matter can be disposed off finally at the stage of admission. Hence, Admit. By consent, matter is heard for final disposal. 2 This is an appeal which has been preferred by the original defendant nos.8 to 10 in Special Civil Suit No.178 of 2007 pending in the Court of Civil Judge, Senior Division, Nashik. The plaintiff has initially filed a suit for specific performance of an oral agreement dated 2.10.2006 only against defendant nos.1 to 4. Since it came to their notice that defendant nos.1 to 4 had by a registered document transferred the property to defendant 2 nos.5 to 7, defendant nos.5 to 7 were subsequently added as defendants in the suit. Defendant nos.5 to 7 then by a registered conveyance transferred a property to defendant nos.8 to 10 and in such circumstances, defendant nos.8 to 10 were also added as defendants to the suit. The record indicates that initially plaintiffs sought injunction only against defendant nos.1 to 4 by their application at Exhibit-5. It is a common ground that this application is still pending and has not yet been decided. After addition of defendant nos.5 to 7, interim injunction was sought against them by filing an application at Exhibit-43. I am informed that this application is also pending. On the addition of defendant nos.8 to 10 interim injunction was sought against them by filing an application at Exhibit-73. The impugned order has been passed below Exhibit-73 and the application of the plaintiffs has been allowed and defendant nos.8 to 10 have been temporarily restrained from creating third party interest or charge over the suit property and also from demolishing any portion of the building standing on the suit property either by themselves or through anybody till the decision of the suit. On perusing the record and the impugned order and after hearing both sides, I find that certain important aspects of the matter which would have a bearing on the question of the plaintiffs succeeding in the suit as also on the question of grant of interim relief have not been dealt with. In paragraph-7 of the order there is an observation of the Court that it was not a disputed fact that the suit property was purchased by defendant nos.5 to 7 and 8 to 10 after the filing of the present suit. It is pointed out by the Advocate for the appellants that this statement is factually incorrect in so far as suit property was purchased by defendant nos.5 to 7 prior to the date of the filing of the suit which came to be filed on 21.5.2007. It was contended that defendant nos.5 to 7 have taken up the contention that they were bonafide purchasers without notice and this aspect has not been dealt with by the trial Court. Apart from this, trial Court has relied 3 upon an `Issar Pavti’ which was produced along with list of documents annexed to the plaint. The trial Court has observed that defendant nos.1 to 4 have not given any explanation regarding their signature on the same. On reading the pleadings of the plaint as well as the applications at Exhibit-5, Exhibit-43 and Exhibit-73, I find that there is no direct reference to the `Issar pavti’. Probably in these circumstances, since the plaintiffs have not explained the manner in which `Issar pavti’ was executed, probably defendants did not deal with the same. Counsel for the respondents contended that, that was the matter that would be cured by a simple amendment. Be that as it may, according to me, two aspects of the case ought to have been dealt with viz. Firstly it appears to be the plaintiffs’ own case that defendant no.1 was not present in the meeting when the alleged oral agreement was arrived at. Plaint itself shows that he was ill and defendant no.4 held out a representation that he was empowered to negotiate on behalf of defendant no.1. `Issar pavti’ relied upon by the plaintiffs has also not signed by the defendant no.1. The effect of one of the co-owners not being present or a party to the alleged oral agreement ought to have been dealt with. It is also seen that there is a variance between the oral agreement as pleaded and the `Issar pavti’ as produced by the plaintiffs. It is seen that the `issar pavti’ contemplates of an agreement of sale after the bank loan of Rs.21 lakhs had been repaid. The court also ought to have dealt with the effect of this variance on the plaintiffs’ case. In my view, therefore, it is desirable that the appeal be allowed and the matter may be remanded for reconsideration of the aforesaid aspects and for passing a fresh order. In the net result, appeal is allowed. The impugned order passed by the Joint Civil Judge, S.D.Nasik, on 4.12.2008 below Exhibit-73 is quashed and set aside and the matter is remanded for a fresh decision which will deal with the aforesaid aspects. 4 3 It is also desirable that applications at Exhibit-5, Exhibit-43 also should be heard and decided along with Exhibit-73 in the said suit. It is therefore, directed that applications at Exhibit-5, Exhibit-43 and Exhibit-73 will be heard and decided together. I am informed that pending the disposal of Exhibit-73, parties were directed to maintain status-quo. Later on there was an order of injunction but as the structure on the property has already been demolished, parties will maintain status-quo as of today till applications at Exhibit-5, Exhibit-47 and Exhibit-73 decided afresh. Appeal disposed off in the aforesaid terms. It is directed that the 3 applications should be decided expeditiously and in any case before 31.3.2010. It is also clarified that the contentions of both the parties are left open. (R.S.MOHITE,J) 5