1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Letters Patent Appeal No. 354/2008 In W.P.No.2835/2008 Deepak Kumar Singhal s/o Rajendra Prasad Singhal vs. Deorao Narayanrao Wade and others. ----------- ------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. --------------------------------------------------------------------------------------------------------- Mr. A.P.Wachasundar, Advocate for the appellant. Mr. S.P.Deshpande, Advocate for the respondents 6 & 7. CORAM : A.P.Lavande & Prasanna B. Varale, JJ DATE OF RESERVING THE ORDER : 04.02.2009 DATE OF PRONOUNCEMENT OF ORDER: 09.02.2009 Heard Mr. A.P. Wachasundar, learned counsel for the appellant and Mr. S.P. Deshpande, learned counsel for respondents 6 and 7. 2. The letters patent appeal is directed against the order dated 13.8.2008 passed by the learned Single Judge dismissing the Writ Petition No. 2835/2008 filed by the appellant challenging the order dated 26.3.2008 passed by the 9th Joint Civil Judge, Junior Division, Nagpur in Regular Civil Suit No. 69/2008 (Old Spl.Civil Suit No. 978/1993). 3. The appellant is the original plaintiff in the above suit originally filed against the respondents for recovery of the earnest amount paid pursuant to the agreement of sale dated 21.12.1989. According to the petitioner, the records of the 2` suit were missing during the period 31.3.1998 to 15.1.2007. On 2.8.2007 the appellant filed an application seeking amendment of the plaint to incorporate the prayer for specific performance which was rejected by the trial court by order dated 26.3.2008. Against the said order, the petitioner preferred Writ Petition No. 2835/08. In the memo of petition, the petitioner has expressly mentioned that the petition was under Article 227 of the Constitution of India. 4. The learned Single Judge after hearing the counsel for the appellant and respondents 6 and 7 dismissed the writ petition. 5. When the matter came up for hearing on admission on 30.1.2009 we called upon Mr. Vachasunder the learned counsel appearing for the appellant to satisfy as to how the letters patent appeal was maintainable since the writ petition preferred by the appellant was under Article 227 of the Constitution of India. The learned counsel sought time and the matter was argued on 4.2.2009. 6. We have heard Mr. Vachasunder at length. The learned counsel submitted that although the petition was styled as under Article 227 of the Constitution of India, in substance the same was under Article 226 and, therefore, the present appeal is maintainable. According to the learned counsel the rights of the appellant are seriously affected by refusal of the 3` amendment application since by the order passed by the learned trial court disallowing the amendment which has been maintained by the learned single Judge the appellant has been deprived of valuable right to seek specific performance of the agreement dated 21.12.1989 and, therefore, the petition filed by the appellant was one under Article 226 of the Constitution of India. He further submitted that the learned Single Judge has not considered several propositions of law mentioned in the memo of petition and, therefore, the appeal is maintainable. 7. Per contra, Mr. Deshpande, the learned counsel for respondents 6 and 7 submitted that the appellant who himself styled the petition as under Article 227 of the Constitution of India now can not turn round and say that the petition was in fact filed under Article 226 of the Constitution of India. According to the learned counsel, the appellant is estopped from contending that the petition was filed under Article 226 of the Constitution of India. The learned counsel further submitted that since the petition was filed under Article 227 of the Constitution of India, letters patent appeal is not maintainable. In support of his submissions, the learned counsel relied upon the following Judgments: i) Umaji Keshao Meshram and others vs. Smt. Radhikabai and another. AIR 1986 Supreme Court, 1272 4` ii) Uttam s/o Ambadasrao Gawali vs. State of Maharashtra and otehrs 2005(3) Mh.L.J., 550; iii) Vinaykumar Ratanlalji Jaiswal and others vs. Nandranibai Kisanlal Jaiswal 2008(4)Mh.L.J. 167. 8. We have considered the rival contentions and perused the record as well as the Judgments relied upon by Mr. Deshpande, learned counsel for respondents 6 and 7. 9. The question which arises for our consideration is whether the letters patent appeal is maintainable against the impugned Judgment and order passed by the learned Single Judge. The appellant has himself filed the petition as under Article 227 of the Constitution of India. Having regard to the reliefs sought in the petition we are of the considered opinion that the petition was maintainable only under Article 227 of the Constitution of India and, therefore, the appellant had rightly invoked Article 227. We find absolutely no merit in the contentions of Mr. Vachasunder that although the petition was filed invoking Article 227 of the Constitution of India, in fact the petition was maintainable under Article 226 of the Constitution of India. As stated above, we are of the considered opinion that the petition was maintainable only under Article 227 of the Constitution of India which was rightly invoked by the appellant. Moreover, the appellant having 5` invoked Article 227 of the Constitution of India, after having lost before the learned single Judge can not now be permitted to contend that the petition, in fact, was filed under Article 226. We are also not impressed with the submission of Mr. Vachasunder that the writ petition was maintainable under Article 226 of the Constitution India since several propositions of law were urged in the memo of petition. Since the petition was filed under Article 227 of the Constitution of India, in our considered opinion, no letters patent appeal is maintainable under clause 15. Therefore, in our opinion, the appeal is liable to be dismissed on the ground that it is not maintainable. 10. Before parting with the order we would like to deal with one more aspect of the matter. The counsel for appellant was specifically called upon to satisfy regarding maintainability of the appeal. The learned counsel insisted that the appeal was maintainable and addressed elaborate arguments. In our opinion, filing of the present appeal is nothing but abusing of the process of the court for which exemplary costs deserves to be imposed. 11. Today on account of huge pendency of cases, the litigants having genuine claims do not get justice for a long time. The appellant has wasted the valuable time of the court which could have been spent for dealing with genuine disputes before the court. Considering all these aspects, we are of the considered opinion that exemplary costs deserves to be 6` imposed on the appellant which we quantify at Rs. 10,000/- (Rupees ten thousand only). The appellant shall deposit costs of Rs. 10,000/- before the trial court within a period of four weeks. After the costs are deposited before the trial Court, the trial court shall permit the respondents 6 and7 to withdraw the costs in equal shares. 12. The appeal stands dismissed subject to the directions given above. Civil Application No. 8125/08 in LPA no.354/2008 (Deepak Kumar Singhal Rajendra Prasad Singhal vs. Deorao Narayanrao Wade and others. In view of the dismissal of the appeal, nothing survives in the application. The application stands dismissed as infructuous. JUDGE JUDGE patle 7`