Writ Petition No. 5340 of 2009. Case: Sk. Naser S/o Sk. Ibrahim Vs Sk. Babu S/o Sk. Ibrahim and Jakaullah Khan S/o Gulam Insar Khan. High Court of Bombay (India)
| Case Number | Writ Petition No. 5340 of 2009 |
| Counsel | For Appellant: A.S. Bajaj, Adv. and For Respondents: Sandeep Deshmukh, Adv. |
| Judges | A.V. Nirgude, J. |
| Issue | Specific Relief Act, 1963 - Section 15; Constitution of India - Articles 266 and 227 |
| Judgement Date | April 27, 2011 |
| Court | High Court of Bombay (India) |
Judgment:
A.V. Nirgude, J.
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This Writ Petition is filed under Articles 266 and 227 of the Constitution of India, challenging a very peculiar order dated 1st August, 2009, passed by the 2nd Joint Civil Judge (Senior Division), Aurangabad, in Special Civil Suit No. 547 of 1993. This order was passed suo-motu by the learned Judge of the trial Court.
The facts leading to the passing of the impugned order can be narrated as under:
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Respondent No. 1 filed this Special Civil Suit No. 547 of 1993 against Respondent No. 2 for specific performance of contract for sale of a piece of land which is quite a sizable one. It was the case of the Respondent No. 1/Plaintiff that, Respondent No. 2 agreed to sell this piece of land for valuable consideration to him, on 19th October, 1991 by executing an agreement in writing. Certain amount was paid as an earnest amount. Admittedly, Respondent No. 1 was already in possession of the suit land, being tenant. The suit continued and at the fag end, when arguments were about to be heard, the Petitioner, who happened to be the brother of Respondent No. 1 made an application to the Court and requested it to impaled him as Plaintiff No. 2. The original parties to the suit did not oppose this move and the Petitioner was added as Plaintiff No. 2 to the lies. Soon after, newly added Plaintiff No. 2 Petitioner effected certain amendment in the plaint and brought on record as to why he got interest in the lies. He pleaded that Respondent No. 1, has assigned suit agreement to him for valuable consideration and had already put him in possession also. The trial Court allowed the amendment and the suit remained pending for disposal. But after few months, the learned judge of the trial Court suddenly realized that newly added Plaintiff Petitioner herein had no business to be a party to the suit and suddenly without giving him an opportunity of being heard, he suomotu set aside the two orders, by which the Petitioner was added as Plaintiff No. 2 and Petitioner was allowed to amend the plaint. This order is being challenged here. Thus, the question is, whether this order is legal?, answer is negative.
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The learned Judge, firstly, could not have passed this order without giving an opportunity of being heard to the affected party, the Petitioner. I have no difficulty for the question as to whether the learned Judge could have exercised discretion to recall the orders passed earlier in the case, but such exercise could not have...
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