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2013 Supreme(Bom) 2393
In the High Court of Bombay at Aurangabad
S.S. SHINDE, J.
Savita
Versus
Zingaraji & Others
Writ Petition No. 4712 of 2009
Decided on : 03-12-2013
Important Points
Subject
Civil Law - Civil Procedure
Act Referred
EVICTION ACT : .
Headnote
Withdrawal of Suit - Civil Procedure Code - Order III Rule 4, Order XXIII Rule 1 - The court restored the suit to its original file, setting aside the order allowing withdrawal of the suit. The withdrawal of the suit by the respondent was not in the interest of the petitioner, as it was done without her instructions and to advance the advantage of the respondent's family members. The court found that the respondent, acting as an advocate, was also an interested party due to family relations and the sale deed executed in favor of his son. The court allowed the writ petition in terms of restoring the suit and did not express an opinion on other prayer clauses.
Fact of the Case:
The petitioner filed a Writ Petition challenging the order allowing the withdrawal of the suit filed for specific performance of a land agreement. The petitioner alleged that the withdrawal was without her instructions and to benefit the respondent's family members. The respondent, acting as an advocate, was also an interested party due to family relations and the sale deed executed in favor of his son.
Finding of the Court:
The court found that the withdrawal of the suit by the respondent was not in the interest of the petitioner, as it was done without her instructions and to advance the advantage of the respondent's family members. The court restored the suit to its original file, setting aside the order allowing withdrawal of the suit.
Issues: The main issue was whether the withdrawal of the suit by the respondent was in the interest of the petitioner and whether the respondent, acting as an advocate, was also an interested party due to family relations and the sale deed executed in favor of his son.
Ratio Decidendi: The court held that the withdrawal of the suit by the respondent was not in the interest of the petitioner, as it was done without her instructions and to advance the advantage of the respondent's family members. The court found that the respondent, acting as an advocate, was also an interested party due to family relations and the sale deed executed in favor of his son.
Final Decision: The court allowed the writ petition in terms of restoring the suit and did not express an opinion on other prayer clauses.
For the Petitioner:V.D. Salnuke, Advocate.
For the Respondents:R1, K.B. Jadhavar, R2 & R3, S.H. Jagiasi, R4 & R5, S.B. Bhapkar, Advocates.
1. Rule. Rule made returnable forthwith. Heard with the consent of the parties.
2. This Writ Petition takes exception to the order, dated 6.9.2007, passed by the Civil Judge, Senior Division, Jalna, in Special Civil Suit No. 23 of 2007 and the judgment and order, dated 17.11.2008, passed by the Civil Judge, Senior Division, Jalna in MARJI No. 34 of 2008.
3. The petitioner herein resides at Vidyanagar, Beed and does agricultural work.
4. Respondent no.1 is residing at Jalna and is practicing advocate. Respondent nos. 2 and 3 herein are residents of Beed. Respondent no.4 herein is the son of respondent no.1 and respondent no.5 herein is wife of respondent no.1 and mother of respondent no.4.
5. It is the case of the petitioner that respondent nos. 4 and 5 got executed a registered sale deed in their favour in respect of suit property, and therefore, they are also added as party respondents in the present Writ Petition.
6. It is the case of the petitioner that maternal house of the petitioner is at Chincholi, Taluka Ambad, District Jalna. Respondent nos. 2 and 3 being the owners of land Gut No. 244 to the extent of their share, situated at Patharwada (Bk.), Taluka Ambad, District Jalna, agreed to sell their land to the petitioner for a consideration of Rs.15,00,000/-, and accordingly on 6.7.2005 executed an agreement of sale by accepting an amount of Rs.13,00,000/- and delivered possession of the said land in favour of the petitioner. The agreement of sale executed by respondents is on Stamp Paper of Rs.100/- having signatures of witnesses and the said agreement of sale was also registered before the Notary. The petitioner has placed on record a copy of agreement of sale at Exh. ‘A’ with the Writ Petition.
7. It is further case of the petitioner that immediately after execution of agreement of sale, the petitioner filed an application with the revenue authority for taking mutation entry, and the Talathi, after following due procedure recorded the mutation entry and same has been sanctioned by the competent authority. The copy of the said mutation entry in the name of the petitioner is placed on record.
8. It is also case of the petitioner that, after execution of agreement of sale by respondent nos. 2 and 3, one Shri Bhaskar Bansi Magare had created some dispute in Tahsil office, Ambad, and therefore, the registered sale deed could not be executed and thereafter respondent nos. 2 and 3 avoided to execute the registered sale deed. The petitioner through her advocate Shri R.D. Thombare, resident of Kaij, District Beed, issued a notice to respondent nos. 2 and 3 and asked them to execute registered sale deed in favour of the petitioner. Since there was no response from respondent nos. 2 and 3, the petitioner filed Special Civil Suit No. 23 of 2007 before the Civil Judge, Senior Division at Jalna for specific performance. For filing the suit, the petitioner engaged advocates Shri Thombare from Kaij and respondent no.1 i.e. Zingaraji Bajaba Misal from Jalna.
9. It is the case of the petitioner that, respondent no.1 is practicing advocate at Jalna, as well as he is closely related with the petitioner, as he is the husband of sister of father of the petitioner. It is also the case of the petitioner that, after filing the suit, respondent no.1 did not take any efforts for service of summons to respondent nos. 2 and 3, and therefore, in the said suit, no notices or summons were served to respondent nos. 2 and 3.
10. It is further case of the petitioner that, after filing of the suit, the mother of the petitioner became severely ill and she was required to take treatment in hospital at Aurangabad. However, subsequently, the mother of the petitioner died on 1.5.2007. The petitioner is elder daughter of her father. It is the case of the petitioner that respondent no.1 and father of the petitioner are having good and cordial relations with each other.
11. The husband of the petitioner is educated upto B.A.B.J. and involved in various
