Final Order 1

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IN THE COURT OF :COURT 02 ADDL SESSIONS JUDGE
Case No. :NOTICE OF MOTION/0103767/2019
Haribahi Thakercy Patel And Ors Vs Mr Bevis Luis And Ors
Date : 18-07-2026
Business : Advocate Ashwini Kumar Yadav for plaintiff is present. None
for defendant is present. Kept back Later on at 2.45 P.M.
Advocate Tanaya Patankar i/b K.M. Sanghavi for plaintiff is
present. Order on Notice of Motion no. 3771/2019 This
motion is for passing decree on admission against defendants
no. 1 to 3 under Order 12 Rule 6 of C.P.C. 1908. Suit is for
injunction restraining defendants from obstructing plaintiffs
possessions as to suit property, regarding which, he claims
prescription of title by virtue of adverse possession.
Defendants no. 4 to 6 have contested the suit whereas
defendants no. 1 to 3 allowed the suit to go unresisted. They
have not even appeared. Hence, when the suit can be heard
ex-parte against them, passing of admission decree on the
basis of admission in correspondence would prejudice the
contesting defendants as there is possibility of collusion
amongst defendants no. 1 to 3 with plaintiff to defeat their
right canvassed in defence. Passing admission decree under
Order 12 Rule 6 of C.P.C. 1908 being the matter of descretion,
and the admission decree having been prayed for in part where
rest of the defendant having the same defence are contesting
the suit vehmently, it would be expediant to go on with main
hearing of the suit, which is being heard exparte even against
defendants no. 1 to 3. Hence the order - ORDER 1. Notice of
motion no. 3771/2019 is dismissed. JUDGE Order on Notice
of Motion no. 3768/2019, 3769/2019 and 3770/2019 These
are motions against either the advocate, who represented
plaintiff in filing consent terms (Exhibit-4) without intimation
to the advocate on record, or the advocates of the defendant,
who were representing defendants as parties to the consent
terms, for initiating action for contempt, and for certain other
directions relating to their authority and concerning the
conduct of the advocates vis-a-vis the parties being
represented, vis-a-vis the Court and vis-a-vis the advocate on
record. It appears more of the greivance of one advocate
against rest than the grievance pertaining to the conduct of the
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suit or incidental proceedings. The misconduct alleged can
well be addressed by approaching appropriate domestic forum
like Bar Council of Maharashtra and Goa. In the
circumstances, it is not expediant to initiate the proceedings
deeming it to be the act of contempt under Contempts of
Courts Act or to pass the other directions prayed for. In the
result, I pass the following order- ORDER Notice of Motion
no. 3768/2019, 3769/2019 and 3770/2019 are dismissed.
JUDGE Order on Notice of Motion no. 3767/2019 This is
N/M for setting aside consent terms Exhibit-4 filed on behalf
of plaintiff no. 1, 4, 6 and 7. Regarding the consent terms,
which were filed by some other advocate not on record, on
behalf of plaintiff, on the day when the matter was not listed,
my Ld. Predeccessor on 20.06.2019, upon noting the absence
of signatures of co-plaintiff no. 3 and 5 and upon recording
the submissions of new advocate that separate consent terms
would be filed in future and further noting that the property in
question is shown in joint possession of plaintiff, called upon
plaintiff no. 3 as well as legal heirs of plaintiff no. 5 to submit
their say to the consent terms, where plaintiff no. 2 had
already died. Ideally, in a suit instituted by several plaintiff,
the interest of all plaintiff should be common and no plaintiff
can conduct the suit prejudicial to the interest of other, which
is reason why withdrawal of such suit by one or more of
plaintiffs, without the permission of all plaintiffs, is rendered
impermissible as per order 23 Rule 1(5) of C.P.C., 1908.
Applying the analogy from the said provision to the consent
terms filed by a new advocate not being an advocate on
record, without obtaining the consent of the AOR, that too, on
a day, when the case was not listed by taking the case on
board, and considering the notings made by the Ld.
Predecessor on 20.06.2019, in pursuance of which, no
separate consent terms came to be filed in response to the
undertaking given by the new advocate for plaintiff for a long
time of seven years, and considering the dispute in matter, the
compromise cannot be said to be lawful within the meaning of
Order 23 Rule 3 of the C.P.C, 1908, as the same seems to be
intended to defeat the interest of other co-plaintiffs, which is
against the public policy in litigation. Hence, the same cannot
be the basis of passing decree under Order 23 Rule 3 of the
C.P.C, 1908. Moreover, there is no case in resistance of the
motion and grounds thereof in justification as to how the
compromise, keeping rest of plaintiffs out of the compromise,
would be lawful and without collusion with defendants no. 4
to 6. Hence the Order- ORDER Notice of motion no.
3767/2019 is allowed by refusing to pass decree under Order
23 Rule 3 of the C.P.C. 1908. JUDGE Order on Chamber
summons no. 1313/2022 This chamber summons for deleting
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the name of deceased plaintiff no. 2 and with the statement
that all the legal heirs of deceased plaintiff no. 2 are on record.
No case in resistance. Chamber summons no. 1313/2022 is
allowed as prayed. JUDGE ORDER ON NOTICE OF
MOTION NO. 1702/2023 Heard. Suit is for injunction
restraining defendants from obstructing plaintiffs possessions
as to suit property, regarding which, he claims prescription of
title by virtue of adverse possession. Plaintiff is claiming
temporary injunction restraining defendants no. 4 to 6 from
obstructing plaintiffs possession as to the suit flat till final
disposal of the suit. A statement made on behalf of Ld.
Advocate for defendants no. 4 to 6 that, defendants no. 4 to 6
would not, in any manner, disturb or obstruct physical
possession of plaintiff as to suit property, has been recorded
by His Lordship Honble Shri Justice S.C. Dharmadhikari,
presiding over the Court trying the suit on original side, on
02.04.2008 (Suit no. 181/2005 and notice of motion no.
1050/2007). In view of that statement, plaintiff being
protected, no further injunction is necessary. Hence the order-
ORDER Notice of motion no. 1702/2023 stands disposed of.
The said statement recorded by His Lordship on 02.04.2008
shall carry its effect. JUDGE Issues are framed and marked as
Exhibit-8 as follows - 1. Whether plaintiff proves that he has
been in peaceful, unobstructed possession of the suit property
to the knowledge of defendants continuously without any
interruption for more than 12 years 2. Whether plaintiff has
prescribed title to the suit property by virtue of adverse
possession 3. Whether defendants are unlawfully obstructing
plaintiffs possession 4. Whether plaintiff is entitled to the
relief of declaration and injunction 5. Whether the suit is
within limitation 6. What order and decree Matter adjourned
to 07.08.2026 for Recording Evidence.
Nature of Disposal : ALLOWED
Disposal Date : 18-07-2026
COURT 02 ADDL SESSIONS JUDGE
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