MOOSA SULEMAN MEMON Vs. HANUMAN IDOL

JUDGEMENT

(1.) The petitioners herein had filed in the Court of the Civil Judge, Senior Division, Thane, Special Civil Suit No. 125 of 1972, for declaration and permanent injunction in respect of the suit property. Pending the said suit an application, Exhibit 58, was filed by the present petitioners for amendment of the plaint in the aforesaid suit. By its order dated 27th July, 1976, the trail Court rejected the said application for amendment of the plaint. This order is challenged by the petitioners in the present Civil Revision Application No. 626 of 1976. During the pendency of this revision application, the petitioners have filed another petition viz., Civil Application No. 4503 of 1978 for permission to the petitioners to withdraw their aforesaid Special Civil Suit No. 125 of 1972 with liberty to institutes a properly constituted fresh suit in respect of a portion of the subject matter on the same cause of action under the provisions of Order 23, Rule 1 of the Code of Civil Procedure.

(2.) I will first take up the said Civil Application No. 4503 of 1978. After the said application was filed in this Court, I directed by my order dated 22nd December, 1978 that as this was an application under Order 23, Rule 1 of the Code of Civil Procedure, notice of this application should be published by public advertisement in the issue of "Loksatta". The said notice was made returnable on 15th January, 1979. In the said order, I had also stated that I was satisfied that personal service should, in the facts and circumstances of this case, be dispensed with. Public notice accordingly has been published in the issue dated 2nd January, 1979 of "Loksatta" giving notice of the petitioners aforesaid application for leave to withdraw their Special Civil Suit No. 125 of 1972. In pursuance of this public notice, over 400 persons have appeared in these proceedings represented by their Advocate, Mr. A.P. Shah. In order to appreciate the prayer for withdrawal of the suit, it is necessary to note the facts and circumstances proceedings the said application.

(3.) As already observed by me above, the above special civil suit was for declaration and permanent injunction. One of the declarations asked for was in respect of the present petitioners ownership of the property described in Exhibit A to the plaint. According to the plaintiffs, this property belonged to one Goswami Shri Gokuldathji Maharaj who succeeded thereto from his forefather. The sons of the said Goswami had in the year 1951 filed on the Original Side of this Court Suit No. 241 of 1951, for partition of the properties belonging to the family and amongst the said properties, the present suit property was also included. In the said suit proceedings, it was, however, agreed that the present suit property be sold to one R.P. Joshi by and under the direction of and with the sanction of the Court. Ultimately by a conveyance dated 5th December, 1960, the said property was conveyed to one Bai Khatijabai wife of petitioner No. 1 herein and the mother of petitioner Nos. 2 to 6 herein. It is in pursuance of the said conveyance duly executed in their favour that the petitioners claim ownership of and title to the suit property.