Amit Shantilal Thakkar Prop. Of Osho Construction v. Dilip Gangaram Thakkar And ORS
k 1/3 23 wp 13423.24 + 1 as.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION WRIT PETITION NO.13423 OF 2024 Amit Shantilal Thakkar ....Petitioner V/S Dilip Gangaram Thakkar & Ors.
....Respondents WITH WRIT PETITION (STAMP) NO.25279 OF 2024 Dilip Gangaram Thakkar ....Petitioner V/S Thane Municipal Corporation & Ors.
....Respondents _________ Mr. Ashutosh R. Gole for the Petitioners in WP 13423 of 2024. Mr. Rajesh Datar i/b Ms. Druti Datar for Respondent in WP 13112 of 2024 and for Petitioner in WP Stamp No.25279 of 2024. __________ CORAM: SANDEEP V. MARNE, J.
DATE : 07 OCTOBER 2024.
P.C.:
1.
These are cross-Petitions challenging the order dated 29 June 2024 passed by District Judge-9, Thane, in Civil Miscellaneous Appeal No.17 of 2022. The Appellate Court has reversed the order dated 18 December 2023 passed by Trial Court rejecting the Application for temporary injunction at Exhibit-5. The limited relief granted by the Appellate Court is to direct Defendant No.3 to reserve area equivalent to the area of suit shed i.e. 525 square feet 1 of
k 2/3 23 wp 13423.24 + 1 as.doc by filing an undertaking to that effect. It appears that in pursuance of the order passed by the Appellate Court on 29 June 2024 the Defendant No.3 has already filed an undertaking before the Trial Court on 16 August 2024 reserving flat No.702 admeasuring area of 527.11 square feet on 7th Floor of the proposed building under construction. Since the order of the Appellate Court has already been complied with by Petitioner in Writ Petition No.13423 of 2024, who is Defendant No.3 in the suit, nothing would survive in the said Petition.
2.
So far as Writ Petition (Stamp) No.25279 of 2024 is concerned, the same is filed by the Petitioner to the limited extent of rejection of similar prayer qua the flat. It appears that the landlord had instituted suit for recovery of possession of flat from the Petitioner and the said suit has already been decreed, albeit ex-parte. Petitioner has filed application under provisions of Order 9, Rule 13 of the Civil Procedure Code, 1908 (the Code) for setting aside the ex-parte decree. Since the flat also formed subject matter of Regular Civil Suit No. 496 of 2012, the same could not have been made subject matter of Regular Civil Suit No.152 of 2023. In that view of the matter, the Appellate Court is right in not granting any relief in favour of the Plaintiff qua the flat which formed part of Regular Civil Suit No.496 of 2012. Since the shed did not form part of Regular Civil Suit No.496 of 2012, limited relief to the extent of 2 of
k 3/3 23 wp 13423.24 + 1 as.doc the suit shed is granted by the Appellate Court. However it does not mean that the Petitioner would be remediless in respect of his claim qua the flat in respect of which Regular Civil Suit No.496 of 2012 was instituted. Since Petitioner has already filed an Application for setting aside ex-parte decree under Order 9, Rule 13 of the Code in Regular Civil Suit No.496 of 2012, it would be open for the Plaintiff to file an appropriate application in the said proceedings for securing interim relief qua the flat. If such application is filed, it would be decided by the Court on its own merits, without being influenced by any of the observations made in the present order. All contentions of parties are kept open. 3.
With the above observations, both the Writ Petitions are disposed of.
(SANDEEP V. MARNE, J.) by SUDARSHAN RAJALINGAM KATKAM Date:
2024.10.11 10:52:07 +0530 SUDARSHAN RAJALINGAM KATKAM 3 of