SANJAY THAKKAR Vs. BHOJJA SHANTU SHETTY

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. With the consent of parties taken up for final hearing.

(2.) By this petition, petitioner assails order dtd. 25/11/2021 passed by the District Judge-6, Kalyan allowing Appeal and setting aside order passed by the 2nd Joint Civil Court, Senior Division on 2/1/2018 by which the trial Court had rejected plaintiff's application for striking out the defence of defendant No. 2. The net result of the order of District Court is that the defence of defendant No. 2 has been struck out.

(3.) Plaintiff/respondent No. 1 has instituted Special Civil Suit No. 144 of 2016 against Vishnu Bhagwan Mhatre (respondent No. 2) and Sanjay Thakkar (petitioner) for enforcement of agreement of Sale dtd. 30/12/2015 executed in pursuance of compromise decree in RCC No. 428 of 2014 and for amalgamation and allotment of Shop Nos. 9 and 10 by defendant No. 2 to plaintiff. Plaintiff apprehended defendant No. 2 creating third party rights in respect of shop Nos. 9 and 10 and was therefore pressing for temporary injunction. In the application for temporary injunction, which was to be heard 26/10/2016, defendant No. 2 filed a pursis stating that he intended to keep the position of the suit property as it is till disposal of Exh.5 application and that he shall not give possession thereof. On account of such a pursis being filed by defendant No. 2, hearing of application for temporary injunction was deferred. However, within two days on 28/10/2016, defendant No. 2 executed an agreement for sale in respect of shop No. 9 in favour of third party. Since the undertaking given before the trial Court was breached, plaintiff filed application at Exh.32 for striking out the defence of defendant No. 2 under provisions of order 39, Rule 11 of the Code of Civil Procedure, 1908 ("Code"). The trial Court proceeded to reject the application vide its order dtd. 2/1/2018. Plaintiff filed Miscellaneous Civil Appeal No. 10/2018 challenging the decision of the trial Court and by the judgment and order dtd. 25/11/2021, which is impugned in the present Petition, the District Court proceeded to allow the appeal and set aside the order of the trial Court by allowing plaintiff's application for striking out the defence of defendant No. 2. Aggrieved by order of the District Judge-6, petitioner/defendant No. 2 has filed the present Petition.