kbp 1 8479-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBA CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8479 OF 2009 Renu Pratap Sondhi ..Petitioner Vs. Mrs.K.S.Chowdhry and ors. ..Respondents ......... Mr.R.A.Thorat, Senior Advocate i/b. Mr.P.V.Vyas, for petitioner. Mrs.Ranjana Parikh with Mr.Udeshi i/b.M/s.Sanjay Ueshi and Co, for respondent nos.4 to 7. Ms.Asha Nair i/b.Mr.Mahesh Menon & Co., for respondent no.9. ....... CORAM : A.S.OKA, J.. DATE : 12 th OCTOBER, 2009. P.C. : 1] Heard learned Senior Counsel for the petitioner and learned counsel for respondent nos.4 to 7. The controversy arising in this petition under Article 227 of the Constitution of India will have to be set right in view of the peculiar orders passed by the trial court as well appellate court. 2] It is not in dispute that the respondent nos.4 to 7 are same of the original plaintiffs who have filed writ petition no.583 of 1990. It is also not in dispute that the respondent nos.1, 2 and 3 are also original plaintiffs who have impleaded as respondent nos.3 to 5 in the writ petition. Even, respondent nos.8 herein is original plaintiff who has been impleaded as respondent no.6 in this writ petition. kbp 2 8479-09.sxw 3] On 10 th February, 2009, this court passed an order by consent of the parties to the said writ petition directing the parties to appear before the appellate bench of the Court of Small Causes on 2 nd March, 2009. In paragraph 6 of the said order this court observed that the findings will have to be invited by the appellate Bench on the following two aspects:- (1) Whether subsequent events stated by the defendants would completely eclipse the requirement pressed by the Plaintiffs in the suit as originally filed. (2) Whether the subsequent events asserted by the Plaintiffs are such that prove that the Plaintiffs require the suit premises for their persona use and occupation bonafide and reasonably on account of their further requirement. The plaintiffs were permitted to amend the plaint. As a consequence of amendment which may be carried out, the defendant will be permitted to amend their written statement. The parties were permitted to lead the additional evidence for substantiating the case made out by the amended pleadings. This court observed that all this can be conveniently proceeded before the appellate court. The hearing of the writ petition was deferred till the findings are received from the appellate court on the aforesaid two questions. 4] It is not in dispute that the appellate court in turn directed the parties to kbp 3 8479-09.sxw appear before the trial court for the purpose of recording additional evidence in terms of the order of this court. Before the trial court, an application was made by the present petitioner purporting to be an application under Rule 10 of Order I of the read with Section 151 of the Code of Civil Procedure, 1908. The prayer in the application was that the plaintiffs be ordered and directed to amend the plaint and implead the petitioner as co-plaintiff. There was opposition to the said application by some of the plaintiffs. Reply and rejoinder were filed. On 16 th July, 2009, the learned trial Judge passed an order recording that the appellate court has only directed to record the evidence. After observing this the learned trial Judge passed the following order :- “Hence matter be put before the Appellate Court, C.R.No.2 for deciding the application Ex.59. Parties are directed to appear before appellate court, C.R.No.2 Small Causes Court, Mumbai on 17/07/09 in morning session at 11.00 A.M. Liberty to file rejoinder granted. In terms of the aforesaid order, it appears that the matter was placed before the appellate bench of the Court of Small Causes. The appellate Bench passed an order on 17 th July, 2009, operative part of the same read thus:- “ The Order passed by Shri. P.K.Chitnis, Judge, Court Room No.8 below Exh.59, which is sent along with this letter is hereby set aside and Exh.59 is send back to trial Court with direction to pass necessary orders on that application considering his jurisdiction in kbp 4 8479-09.sxw the matter and considering the direction of the Appellate Court. We also warn to trial Judge not to pass such Order in future against any of superior Courts. The parties of this matter are orally directed to go before the trial Court at 2.30 p.m. Today.” In terms of the said order, the matter again went back to the trial Judge. On 1 st August, 2009 the learned trial Judge directed that the said application shall be filed. Paragraph 2 of the said order read thus:- “ Hon’ble Appellate Court C.R.No.2 by order dated 16.04.2009 has given specific directions to this Court in para – 4 for recording the evidence of the plaintiff and defendant considering their subsequent pleadings on record. In para - 5 of the order direction is also given to record the evidence of both the parties day to day from 3.00 p.m. To 5.00 p.m. without adjourning matter. As well as in para – 10 Hon’ble Appellate Court C.R.No.2 has given specific directions to this Court for recording the evidence of parties and send back the matter with recorded evidence. Therefore, limited scope is there to this Court to record the evidence only. As this application is out of the scope of directions given by the Hon’ble Appellate Court. Hence application stands filed.” 5] In my view, the entire exercise was uncalled for. Both the Courts have completely ignored that the main writ petition was pending in this court and only a limited direction was issued by this court directing the parties to appear before kbp 5 8479-09.sxw the appellate bench of the Court of Small Causes for the purpose of amending the pleadings and for leading further evidence on the basis of amended pleadings. The appellate Court was required to record the findings as directed by this court. It is so obvious that the application for impleading the parties could have been filed only in the pending writ petition. Only this court could have permitted addition of parties. This aspect was completely lost sight of by the courts below. After the learned trial Judge by order dated 16th July, 2009 committed an error by directing the parties to appear before the appellate court, the appellate court committed a further error by sending back the application to the trial court. The appellate court had no jurisdiction to set aside the order of the trial court as the appellate court was not deciding an appeal against the said order. The only order which can be passed in this writ petition is of setting aside all the three orders and permitting the petitioner to take out an appropriate application in the pending writ petition. While doing so, I am constrained to observed that the orders referred to above show non-application of mind by the courts below. 6] The petition is disposed of by passing following order:- (a) The orders dated 16 th July, 2009 and 17 th July, 2009 and 1 st August, 2009 are set aside. (b) Application exhibit 59 was not maintenable, and therefore, the same stands dismissed. (c) It will be open for the petitioner to file appropriate application kbp 6 8479-09.sxw in the pending writ petition. (d) It is obvious that this court has not expressed any opinion on merits of the said application which may be made by the petitioner. (e) Petition is disposed of in the above terms. ( A.S.OKA, J. )