BEENA'S COMPUTER TYPING AND SHORTHAND INSTITUTE

BOMBAY HIGH COURT P8 (English)

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After having decided to seek joint conveyance of the entire subject land in favour of the three societies, two options were open to Respondent No.1 Society. The first option was to secure conveyance through the Court. Accordingly, Respondent No. 1 could have applied for amendment of the Plaint at appellate stage or could have withdrawn the Appeal with liberty to file a fresh suit seeking conveyance of entire land in favour of the three societies. However, provisions of Section 11 of MOFA were amended and a faster and swifter remedy of deemed conveyance was provided during pendency of the First Appeal. Thus second option became available for the Respondent Societies and accordingly they decided to file application for deemed conveyance. This is a reason why First Appeal No. 1091 of 2000 was withdrawn expressing intention to file application for deemed conveyance. Considering the above position, it is difficult to hold that decree dated 7 November 1997 came in the way of Competent Authority deciding an altogether different prayer made by Respondent Nos.1 to 3 Societies for deemed conveyance. Instead of impleading Respondent Nos.2 and 3 to First Appeal No.1091 of 2000, Respondent No.1-Society thought it appropriate to file a joint application for deemed conveyance along with Respondent Nos.2 and 3. It is well settled that an Appeal is a continuation of the Suit. What can be done during pendency of Suit can also be done during pendency of the Appeal. It is always open for a party to withdraw a conveyance suit and file application for deemed conveyance. Legislature has consciously provided for a quicker and swifter remedy to the Societies to secure conveyance of land. Therefore, merely because a suit is instituted, the same does not prevent a Society from applying for deemed conveyance by withdrawing the suit. In the present case, the Suit was filed when there was no provision in MOFA for deemed conveyance. Since S.C. Suit No. 3226 of 1985 could have been withdrawn by Respondent No.1-Society with liberty to file joint application for deemed conveyance with Respondent Nos.2 and 3-Societies, the same course of action could be adopted even during pendency of the First Appeal. In my view, therefore the objection sought to be raised by the Petitioner about impermissibility for Competent Authority to decide application for deemed conveyance after withdrawal of the Appeal is completely misplaced. The objection of res-judicata can also not be raised.

After having decided to seek joint conveyance of the entire subject land in favour of the three societies, two options were open to Respondent No.1 Society. The first option was to secure conveyance through the Court. Accordingly, Respondent No. 1 could have applied for amendment of the Plaint at appellate stage or could have withdrawn the Appeal with liberty to file a fresh suit seeking conveyance of entire land in favour of the three societies. However, provisions of Section 11 of MOFA were amended and a faster and swifter remedy of deemed conveyance was provided during pendency of the First Appeal. Thus second option became available for the Respondent Societies and accordingly they decided to file application for deemed conveyance. This is a reason why First Appeal No. 1091 of 2000 was withdrawn expressing intention to file application for deemed conveyance. Considering the above position, it is difficult to hold that decree dated 7 November 1997 came in the way of Competent Authority deciding an altogether different prayer made by Respondent Nos.1 to 3 Societies for deemed conveyance. Instead of impleading Respondent Nos.2 and 3 to First Appeal No.1091 of 2000, Respondent No.1-Society thought it appropriate to file a joint application for deemed conveyance along with Respondent Nos.2 and 3. It is well settled that an Appeal is a continuation of the Suit. What can be done during pendency of Suit can also be done during pendency of the Appeal. It is always open for a party to withdraw a conveyance suit and file application for deemed conveyance. Legislature has consciously provided for a quicker and swifter remedy to the Societies to secure conveyance of land. Therefore, merely because a suit is instituted, the same does not prevent a Society from applying for deemed conveyance by withdrawing the suit. In the present case, the Suit was filed when there was no provision in MOFA for deemed conveyance. Since S.C. Suit No. 3226 of 1985 could have been withdrawn by Respondent No.1-Society with liberty to file joint application for deemed conveyance with Respondent Nos.2 and 3-Societies, the same course of action could be adopted even during pendency of the First Appeal. In my view, therefore the objection sought to be raised by the Petitioner about impermissibility for Competent Authority to decide application for deemed conveyance after withdrawal of the Appeal is completely misplaced. The objection of res-judicata can also not be raised.