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Bombay High Court

DUGAD INFRASTRUCTURE LLP THR ITS PARTNERS DAUGAD INFRACON LLPversusM/S. LUNKAD REALTY THR ITS PARTNER MR AMIT KANTILAL LUNKAD

Decided
Disposal
Disposed Off

Holding

The impugned order is quashed as it failed to comply with the mandatory requirements of the proviso to Order XXXIX Rule 3 of the Code of Civil Procedure, 1908.

Summary

The appellant Dugad Infrastructure LLP filed an appeal against an order dated 6 May 2026 which had dismissed its Exhibit‑5 interim application. The respondent, Lunkad Realty, contended that the order was passed without complying with the mandatory requirements of the proviso to Order XXXIX Rule 3 of the Code of Civil Procedure, 1908. The High Court, on the parties' consent, examined this procedural defect and held that the order must be set aside. Consequently, the court quashed the impugned order, directed the appellant to file an affidavit‑in‑reply and the respondent to file a rejoinder within specified dates, and ordered the trial court to rehear the Exhibit‑5 application afresh without being influenced by the earlier order. All substantive rights and contentions of the parties were kept open for determination on the merits.

Issues considered

  • Whether the order dated 6 May 2026 complied with the mandatory requirements of the proviso to Order XXXIX Rule 3 of the Code of Civil Procedure, 1908.
  • Whether the appellate court may set aside the impugned order on the ground of non‑compliance with the said proviso.

Legislation cited

Subjects

  • Procedural law
  • Civil Procedure Code
  • Order quash
  • Appellate jurisdiction
  • Interim application
  • Compliance with Order XXXIX Rule 3
  • Civil litigation

Judgment

                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                       APPEAL FROM ORDER NO.447 OF 2026
                                                       WITH
                                      INTERIM APPLICATION NO.3639 OF 2026
BHALCHANDRA
                                                      IN
GOPAL                                  APPEAL FROM ORDER NO.447 OF 2026
DUSANE

Digitally signed by
BHALCHANDRA
GOPAL DUSANE
                      Dugad Infrastructure LLP                               ... Appellant
Date: 2026.05.19
15:29:37 +0530        through its Partners, Daugad Infracon LLP
                                   Vs.
                      M/s Lunkad Realty,                                     ... Respondent
                      through its Partner, Mr. Amit Kantilal Lunkad

                      Ms. Ankit Lohia a/w Mr. Vishal Raman, Mr. Gopal Agrawal, Ms. Aditi
                      Rajput, Mr. Swapnil Sangle i/by Mr. Prajit S. Sahane, for the Appellant

                      Mr. Girish Godbole, Senior Advocate a/w Mr. Hrishikesh S. Shinde, Mr. Jay
                      S. Patil, Mr. Nikhil Singhvi, Mr. Karan Parmar and Siddharth N. Sutaria for
                      Respondent No.1.

                                                   CORAM : GAUTAM A. ANKHAD, J.
                                                             (VACATION COURT)
                                                    DATE   : 18th MAY 2026.

                      P.C. :
                      1.     I have perused the Impugned Order dated 6 th May 2026. During the

                      course of hearing, upon a query put by the Court, Mr. Godbole, learned

                      senior counsel appearing for Respondent no.1, on instructions submits that

                      the impugned order dated 6th May 2026 may be set aside on the limited

                      ground that the mandatory requirements of the proviso to Order XXXIX

                      Rule 3 of the Code of Civil Procedure, 1908 has not been complied with.



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                      1 AO 447.26+.doc                                                   Dusane
2.     In view of the aforesaid statement and considering that the impugned

order has been passed without compliance of the requirements of reasons

contemplated under the proviso to Order XXXIX Rule 3, the parties have

agreed that the Exhibit 5 Application itself may be reconsidered afresh by

the trial Court after granting an adequate opportunity to all concerned

parties.


3.     Accordingly, by consent of the parties, the following order is passed:

       (i)     The impugned order dated 6th May 2026 is quashed and set

       aside, without adjudicating upon the merits of the rival

       contentions of the parties.

       (ii)    The Appellant herein shall file an affidavit-in-reply to the

       Exhibit-5 Application on or before 28th May 2026. Respondent

       No.1 (original Plaintiff) is at liberty to file a rejoinder, if any, on

       or before 4th June 2026. The parties shall adhere to the timelines

       and shall not seek any extension of time.

       (iii)   The trial Court shall hear and decide the Exhibit-5

       Application on its own merits and in accordance with law,

       without being influenced either by the observations contained in

       the impugned order or by the present order passed by this Court.


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1 AO 447.26+.doc                                                          Dusane
       The parties shall cooperate for expeditious disposal of the

       Exhibit-5 Application.

       (iv)    The parties shall appear before the learned trial Court on

       8th June 2026 for further proceedings in the Exhibit-5

       Application. The trial Court shall endeavour to hear and dispose

       of the said Application expeditiously and preferably within a

       period of three weeks thereafter.

       (v)     All rights and contentions of the parties on the merits of

       the matter are expressly kept open.


4.     Appeal from Order No. 447 of 2026 is disposed of in above terms.

The Interim Application does not survive and the same is also disposed of.



                                                [ GAUTAM A. ANKHAD, J. ]




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1 AO 447.26+.doc                                                     Dusane


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