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[Link].1093/2024
Brijlal Jagwani Vs. Prashant Deshpande
Order below application for striking off defence dt.04/07/2024
(Passed on 15/07/2024)
1. Plaintiff has requested for striking of defence under Order 39 Rule 11
of CPC as well as to take necessary action under Order 39 Rule 3 of
CPC for attachment of property as well as sending the defendant in
civil prisoner.
2. According to plaintiff, after passing of temporary injunction order
dated 16/04/2015, defendant No.1 has challenged the said order
before the Hon’ble District Court vide MCA No.81/15 which was set
aside by the Hon’ble District Court. Being aggrieved by the dismissal
order of above MCA, plaintiff filed Writ Petition No.6912/2015 before
the Hon’ble High Court.
3. The Hon’ble High Court passed order dated 20/12/2012 and observed
in Para 3 of the said order that, “ admittedly, the statement made in the
above order binds the parties. Much time has lapsed pursuant to the
passing of the above order. It is informed across the bar that the suit
has not progressed at all since then. Hence, it is directed that the
statement recorded in Para 4 of the above order shall be maintained
by the Society till the final disposal of the suit.” With this observations,
defendant Nos.1 to 3 has to maintain the suit property, no construction
alter or change over the suit property.
4. However, on 30/06/2024, plaintiff came to know that, defendants had
installed iron container in one plot and another plot use for the
children by installing kids instrument. Overall, defendants have
disobeyed the order. In such circumstances, it is necessary to take
action against them from striking off the defence as well as the breach
of injunction order. Lastly prayed to allow the application.
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5. Defendant No.3 has filed detail say and denied all the contentions of
plaintiff. According to defendant, they have not committed any error
or breach of the order passed by the Hon’ble High Court dated
20/12/2022. Plaintiff had misinterpreted the order. The statement
reflected in the application was not mentioned and not made before
the Hon’ble High Court. Infact, small cabin is kept in suit side since
last 2 years. It is not the construction in true sense. Defendant No.3
had made some reference about the order in their reply filed on
record. According to him, he has not committed any breach of order
passed by the Hon’ble High Court. Lastly prayed to reject the
application.
6. Considering the rival contentions of both parties and documents filed
on record, following points arise for my determination of this
application and I have recorded my findings thereon with the reasons
given there below.
[Link]. Points Findings
1. Whether defence of defendant is required In the negative
to be strike out as prayed ?
2. What order ? As per final
order
:REASONS:
As to Point Nos.1 and 2 :
7. Heard both the learned advocates at length. Law is settled on the point
that, in order to take necessary action under Order 39 Rule 3 of CPC,
separate Civil M.A. is required to be filed. Hence, it is necessary to
decide this application only in the light of Order 39 Rule 11 of CPC.
8. I have gone through the documents placed on record, it comprised
affidavit filed by Brijlal Jagwani before the Hon’ble High Court dated
31/08/2017. Order passed by the Hon’ble High Court in Writ Petition
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No.6912/2015 dated 31/08/2017 and another order passed by
Hon’ble High Court dated 20/12/2022, earlier as well as recent
photographs also placed on record by the parties.
9. On perusal of order passed by the Hon’ble High Court dated
30/08/2017 as follows:
1. This Petition has been moved for urgent reliefs.
2. This Petition challenges the order dated 20th June 2015, passed by
the learned District Judge, Pune filed in a Suit for declaration and
permanent injunction. By the impugned order the Respondents Appeal
from the order of the Trial Court allowing the injunction application of
the Petitioner was allowed. Thus the injunction against the
Respondent came to end.
3. The urgency in moving this Application now in respect of an order
dated 20th June 2015 has been explained by the Petitioner in
additional affidavit dated 31st August, 2017, filed in Court. According
to the Petitioner, earlier on a police complaint being filed in 2016 the
Respondent stopped any attempt to construct on the suit land.
However on visiting the site, now they have learnt that a play area has
been developed on the suit property. They seek status quo as of today
till the hearing of the Petition.
4. Mr. Godbole, learned Sr. Counsel appearing for the Respondent
No.1 states that the Suit property stands transferred to the Balaji
Cooperative Housing Society of which Respondent No.1 is the
Chairman. On instructions Mr. Godbole states that the Respondent
No.1 as the Chairman of the Balaji Cooperative Housing Society states
that any construction activity done on the Suit property would be
subject to the result of this Petition and that the Respondent No.1
alongwith the Housing Society would claim no equities.
5. In the above view, no ad-interim relief is called for at this stage. The
Petition is adjourned to the next CMIS date i.e. 21st February, 2018, to
which this Petition is posted.
10. Further On perusal of order passed by the Hon’ble High Court
dated 20/12/2022 as follows:
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1. Heard Mr. Wakankar, learned Advocate appearing for Petitioner
and Mr. Godbole, learned Senior Advocate appearing for
Respondent No.1 at length.
2. On 31.08.2017, this Court passed the following order in addition to
previuos order dated 30/08/2017.
3. Admittedly, the statement made in the above order binds the
parties. Much time has lapsed pursuant to the passing of the above
order. It is informed across the bar that the suit has not progressed
at all since then. Hence it is directed that the statement recorded in
paragraph No.4 of the above order shall be maintained by the
Society till the final disposal of the suit.
4. Mr. Wakankar submitted that the grievance of the Petitioner which
is adjudicated by the learned Trial Court in the impugned order
dated 20.06.2015, inter alia, pertains to the deed of correction and
it needs to be revisited. I do not wish to do the same and express
any opinion which would otherwise influence the learned Trial
Court.
5. In view of the fact that the suit proceedings have been remained
pending before the Trial Court since long, subject to the above
embargo on Respondent No.1, the learned Civil Judge Junior
Division, Pune is requested to dispose of the trial in the pending
suit within a period of eight (8) months from today without being
influenced by any of the observations made in the impugned order
dated 20.06.2015.
6. All contentions of the parties are expressly kept open before the
Trial Court.
7. With the above directions, Writ Petition is disposed.
11. Overall, on perusal of both orders, prima-facie it appears that,
the Senior Counsel for defendant No.3 [Link] states that, any
construction activity done in the suit property would be subject to the
result of this petition and that the respondent No.1 alongwith housing
society would claim no equities . Further the Hon’ble High Court in
their order dated 20/12/2022, has not granted ad-interim relief to the
plaintiff. At the time of passing of final order dated 20/12/2022, the
Hon’ble High Court has directed that the statement recorded in Para 4
of the above order shall be maintain by the society till final disposal of
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the suit. The Hon’ble High Court while disposing the Writ Petition, has
held that, All contentions of the parties are expressly kept open before
the Trial Court. At the time of disposal of Writ Petition No.1612/2015,
Hon’ble High Court pleased to made matter time bound.
12. Already the learned counsel for defendant had made statement
before the Hon’ble High Court that any construction activity done on
the Suit property would be subject to the result of this Petition and
that the Respondent No.1 alongwith the Housing Society would claim
no equities. No ad-interim relief was granted in favour of defendant by
the Hon’ble High Court in above Writ Petition. Whether defendant has
committed breach of order or not could not be decided at this prime
stage. Its my humble opinion that in absence of specific ad-interim
relief this court should not interpret the orders of Hon’ble High Court
in above Writ Petition.
13. Overall, at this prime stage, I did not found any willful
disobedience of the order passed by the defendants to discard their
evidence under Order 39 Rule 11 of CPC as prayed for. Therefore,
application of plaintiff is liable to be rejected. Hence, I record my
findings to the point No.1 in the negative and in answer to Point No.2
as follows:
:ORDER:
Application is stands rejected.
Sd/-
Date : 15/07/2024 ([Link])
th
12 Jt. Civil Judge (S.D.) Pune