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Bombay High Court · body

2019 DIGILAW 2047 (BOM)

Rajkumar v. Rashmi Harishkumar Aahuja

2019-09-04

A.S.CHANDURKAR

body2019
JUDGMENT : A.S. Chandurkar, J. Rule. Heard finally considering the short issue involved. 2. The petitioner is the original plaintiff who is aggrieved by the orders dated 24.07.2017 passed by the trial Court below Exhibits 40 and 41 whereby the earlier orders passed below Exhibits 35 and 36 came to be reviewed without hearing the petitioner. A challenge is also raised to the order passed below Exhibit 1 dated 26.4.2018 directing addition of parties who are found to be interested. 3. It is not necessary to refer the facts in detail. Suffice it to observe that the plaintiff had moved an application below Exhibit 36 seeking grant of police aid in carrying out the measurement of Khasra No.166/2/1 which application was allowed by the trial Court on 17.07.2017. The plaintiff had also moved an application by which it was prayed that the Deputy Superintendent of Land Records be directed to measure the aforesaid suit property. That application was also allowed on 17.07.2017. The defendant on 24.07.2017 moved two applications at Exhibits 40 and 41 seeking review of the orders passed below Exhibits 35 and 36. Though the trial Court called the say of the other side, it proceeded to allow both the applications without granting time to the original plaintiff to file his reply. The applications at Exhibits 40 and 41 were decided on the same day when they were filed. A further order was thereafter passed below Exhibit 1 directing the defendant to take steps to add parties who are found to be interested persons with a view to avoid further complications in the suit. These orders are the subject matter of challenge in the present writ petition. 4. It is submitted by Shri A.B. Patil, learned counsel for the petitioner that the applications below Exhibits 40 and 41 were filed on 24.07.2017 and the orders thereon came to be passed on the same day despite the fact that the say of the plaintiff was called thereon. The plaintiff was not heard when the orders were passed. He submitted that the reply to the aforesaid applications was in fact filed on 14.08.2017 but as orders below Exhibits 40 and 41 were passed on 24.07.2017 the said replies came to be filed. Similarly, the trial Court was not justified in vaguely directing addition of parties who could be interested in the suit property. He submitted that the reply to the aforesaid applications was in fact filed on 14.08.2017 but as orders below Exhibits 40 and 41 were passed on 24.07.2017 the said replies came to be filed. Similarly, the trial Court was not justified in vaguely directing addition of parties who could be interested in the suit property. The plaintiff being dominus litus, such addition could not have been directed. It was thus submitted that the orders below Exhibits 40, 41 and 1 were liable to be set aside. 5. Shri V.S. Mishra, learned counsel for the respondent supported the impugned orders by submitting that considering the facts of the case the trial Court was justified in passing the orders below Exhibits 40 and 41. Even the order passed below Exhibit 1 directing addition of parties who are found to be interested in the suit property was valid. This was with a view to avoid further complications and hence no interference was called for. 6. On perusing the documents on placed on record it is seen that after the applications below Exhibits 35 and 36 were allowed on 17.07.2017, the defendant sought review of those orders by filing applications at Exhibits 40 and 41. Though the trial Court called for the say of the other side, it passed orders on those applications on the same day. In effect the plaintiff was not heard when those orders came to be passed. Since the orders below Exhibit 35 and 36 were operating in favour of the plaintiff, he ought to have heard before reviewing those orders. The fact that the say was filed only on 14.08.2017 indicates that the applications below Exhibits 40 and 41 were decided without considering the reply of the plaintiff. On this short ground the impugned orders passed below Exhibits 40 and 41 are liable to be set aside. Similarly the order passed below Exhibit 1 is as a result of the orders passed by the trial Court below Exhibits 40 and 41. The plaintiff as dominus litus ought to have been heard before any addition of party was directed. It is therefore found that after adjudicating the applications below Exhibits 40 and 41, it would be for the trial Court to consider whether any parties are required to be added as defendants. 7. The plaintiff as dominus litus ought to have been heard before any addition of party was directed. It is therefore found that after adjudicating the applications below Exhibits 40 and 41, it would be for the trial Court to consider whether any parties are required to be added as defendants. 7. In that view of the matter, the following order is passed : (i) The orders passed by the trial Court below Exhibits 40 and 41 dated 24.07.2017 are set aside. Those applications are restored for fresh adjudication after giving due opportunity to the parties. (ii) Similarly, the order dated 26.04.2018 passed below Exhibit 1 is also set aside. After applications at Exhibits 40 and 41 are decided, the trial Court may consider in the facts of the case and after hearing the parties, whether addition of any defendant is warranted. (iii) The applications be decided on their own merits without being influenced by any observations made in this judgment. (iv) Rule is made absolute in aforesaid terms. No orders as to costs.