1 wp6487-11 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 6487 OF 2011 Mhalsakant Sakhararam Peshave .. Petitioner Versus Sanjay Balkrishna Peshave and others ... Respondents Mr. Dilip Bodake for the petitioner Mr. B. A. Lawate for respondent Nos. 1 to 7 Mr. Ajay A. Joshi for repsondent No. 8-B. Mr. Pritesh Bohade for Respondent Nos. 9, 11 to 13, 14A and 14B Mr. P. C. Kansara for Respondent No.10 CORAM : R. Y. GANOO, J. DATED : 3rd October, 2011 P.C. 1. Rule. Rule made returnable forthwith. Mr. Joshi appearing on behalf of respondent no.8 (B) who is the contesting respondent, waives service. By consent taken up for hearing. 2. The partition Suit being Regular Civil Suit No. 143 of 2008 is pending in the court of Civil Judge, Junior Division, Saswad. The learned Civil Judge, Junior Division has already passed an order of injunction in terms of applications Exh.5, Exh.42 and Exh.52 on 30th March, 2011. It appears that after the said order was passed, the present petitioner is interested in running a petrol pump and this is how, he filed an application below Exh.77 before the 2 wp6487-11 learned trial Judge, seeking permission to carny out construction for erection of the petrol pump. That application was granted by the impugned order on 15th October, 2010. It is noticed that this order is not challenged by any person who is party to the aforesaid suit. Thereafter, the present respondent no.8(B) filed an application below Exh.85 seeking permission to utilize the lands mentioned in the said application for certain commercial activities, though the decree for partition is not passed. The learned Judge, by his order dated 8th April, 2011, ruled that the say of the present petitioner is not required and the matter proceeded further. The plaintiff had filed his say and after perusal of the say, the learned Judge came to the conclusion that the plaintiff has no objection for allowing the application (Exh.85) and the said application was granted by order dated 19th April, 2011. Thereafter, the present respondent no.8(B) filed application below Exh.92 seeking amendment of application below Exh. 85. At the same, the present petitioner moved an application Exh.95 seeking review/revocation of the order passed below application Exh.85. These two applications were decided by the learned Judge and by an order dated 18th July, 2011. The application for amendment filed by respondent no.8-B was granted and the application for review/revocation of the order below Exh.85, dated 19th April, 2011, was rejected. With these factual aspects and the orders, the petitioner has approached this Court. 3. It is noticed that the present respondent no. 8(B) is trying to use the land in question for certain commercial purpose though lands are not fallen to 3 wp6487-11 his share. In my view, in such situation, say of all the defendants is required to be obtained so that if such an application is granted, the other parties should not have any grievance about it. In the present case, the learned Civil Judge, obtained say of the plaintiff only thinking that the plaintiff alone will have the say in the matter. In fact, the defendant no.1 i.e present petitioner approached the Court for seeking time to file say but, the learned judge, by order dated 8th April, 2011, indicated that the say of the present petitioner is not called for, means he is not expected to give any say. Thereafter, an order dated 19th April, 2011 came to be passed. When the application for revocation/review of the said order was made, the same came to be rejected. 4. In the aforesaid circumstances, I am inclined to take view that the lands which are the subject matter of partition suit have not been physically partitioned and if a party wants to use a particular land for a particular purpose, then consent of all parties to the suit will be required as they will be interested in putting up their say. Undoubtedly, in the present case, say of defendant no.1 was not obtained. In view of this, the order dated 19th April, 2011 is required to be set aside. Similarly, the order dated 18th July, 2011 passed below Exh. 95 in Regular Civil Suit No. 143 of 2008 is required to be set aside. Amendment has been carried out pursuant to the order below Exh. 92 to the application below Exh.85. Now, the say of all contesting defendants is required to be obtained. All the contesting defendants would get a chance to put up their say in the matter. In this view of the matter, the petition is disposed 4 wp6487-11 of by the following order: i. Order dated 19th April, 2011 passed below Exh.85 is set aside. ii. Order dated 18th July, 2011 passed below Exh.95, is set aside and the order passed below Exh. 92 is confirmed. iii. Now, the application Exh.85 of the present respondent no. 8-B who is interested in prosecuting the same is duly amended. The learned Judge, before whom aforesaid suit is pending shall ensure that the copies of this application are served on all the defendants as well as on the plaintiff in the suit. Thereafter he will give reasonable time to all the parties to file their say and after the say is filed by the parties who want to oppose the said application below Exh.85, it shall be considered on merits without going into the past. This exercise shall be carried out by the learned Civil Judge, Junior Division, Saswad as expeditiously as possible and preferably on or before 31st December, 2011. iv. There shall be no order as to Cost. v. R. & P. if called for, the same shall be dispatched to the learned Civil Judge, Junior Division, Saswad, forthwith. (R. Y. GANOO, J.)