In proceeding of WP filed by petitioner, the senior counsel for Petitioner made the statement before HC that, they are ready reserve one flat of 2 BHK having area 850 sq.feet in building under construction. This flat will be reserved to secure the rights of respondent, till the disposal of partition suit, pending before TC and no third party interest will be created in respect of said flat. The HC passed the order on the basis of this statement, by taking this statement as undertaking to the HC. After passing the said order, the petitioner approached HC again to correct the above order, stating therein that the flat, which is reserved to secure the rights of respondent, which is actual 1 BHK as per sanctioned plan therefore it is never anytime 2 BHK, hence the correction is needed in previous order. HC, while disposing Civil Application below order is passed. “This Court has recorded the statement made by the learned Senior counsel in Para 3 of the order that no third party right would be created in respect of flat no…. 2 BHK, in the building to be constructed and the said flat can be kept reserved pending decision of Regular Civil Suit No…….of…....This court has accepted the statement made by the petitioner. I am not declined to modify Para 3 of the said order dated………Civil Application is accordingly disposed off”. It is pertinent to note that, the applicant in there civil application never said that “by mistake it was stated to court”, in fact it is stated only that, the flat was 1 BHK when it was sanctioned in plan by municipal corporation hence the correction is needed. but the HC rejected this application stating that, when the statement was made by senior counsel the flat B 7 was 2 BHK only and never it is stated 1 BHK, therefore the said application can not be entertained. In view of above both order, the petitioner has to kept 2BHK flat reserved as per the orders of HC but it is pertinent to note that, as such there is no 2 BHK flat is not existing and which is in existing i.e. 1 BHK is already rejected by Court itself. Therefore My questions : A)In view of violation of above undertaking, whether we can file new civil application, under CPC order 39 rule 11 (Bombay High Court Amendment) read with section cpc 151 to strike out or dismiss the WP on the basis of fraud played on court and abuse of the process of law. B. Whether we can pray to TC to strike out petitioner’s (original defendant) defence in pending suit of partition. C. what else remedy in Law D. How I can find best advocate to handle this case in HC Mumbai.
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1) You can when writ comes for hearing draw attention of court to non compliance of undertaking given by petitioner
2) pray writ be dismissed
3) no no need to file separate application
4) you can take out contempt of court proceedings against petitioner for violation of undertaking given in HC
there is no rule 11 in order 39 of CPC
Order 39 has only 10 rules
if you intend to file any application to bring to notice of court that 2BHK flat does not reflect in sanctioned plans, then indirectly you will be accepting the reservation of that flat, against which you yourself had taken out an application in the petition
thus you wont be able to challenge that order disposing of your application before the higher court
if however you do wish to pursue this course, then you can file an application in the WP seeking directions to the builder to produce the sanctioned building plans in court and specifically show to the court the reserved flat on the plans
if the builder is unable to show such flat for which he gave the undertaking, then you can seek a direction to him to reserve any other flat of 2bhk configuration and also have its exact carpet area and floor recorded in the order
A. If the aforesaid fact is corrected by hc in its order then it will be futile to challenge the same as the court will assume it as inadvertent error.
B. You can file application to do so but I guess it will be difficult to allow the same.
You can consult me through kaanoon for a telephonic consultation. If you satisfied i can handle the said case
writ proceeding is already over. after the writ proceeding is over and HC passed earlier order, thereafter petitioner again filed a civil application to correct the earlier order. Therefore while disposing that civil application, the court passed next order, which i have posted in my query. sir. please confirm again. Thanks.
The Petitioner is bound to comply with HC orders
For coreecting the order you need to file speaking to the minutes or review.
1. No profit file the application in the same case.
2. For the purpose you have to amend your plaint/Rejoinder as the case may be.
3. Go to the High Court personally and discuss with some junior lawyer that who is the best advocate for the purpose they will suggest you.
1. Have you mentioned in the application that there was no 2 BHK available, whether the high court has taken note of this while rejecting this application?
2. This case is struck by technical issues, hence you may have to carefully handle the same since your earlier applications have been rejected.
3. The defendant's fraud played on the court should be highlighted with documentary evidence in your review petition.
You may file a review petition to review the earlier order in view of the defects now being pointed out.
If you think you have any other options than this you may very well proceed however please ascertain that if the said steps to be taken are worth enough or to file a fresh suit seeking remedy.