Is a right created in a party by any observation of court made without pleading and evidence?

 Shri Sawant emphasises that on 16.04.2012, this Court

did observe in its docket proceedings that both the brothers contributed the sale consideration. So, it is beyond any pale of controversy that Subhash has a stake in the decretal amount.

That accepted, if the Court allows Rajesh to withdraw the entire decretal amount, it prejudices Subhash. In this context, Shri Sawant insists that Rajesh has played fraud on Subhash. With that, the whole judicial proceedings stand vitiated. So no

procedural limitations can come in the way of this Court’s

allowing the interlocutory application. That, in fact, serves the

cause of justice. {Para 14}

  Now, let us deal with a collateral issue. Subhash insists

that this Court, in its order dated 16.04.2012, noted that

Subhas, too, contributed to the sale consideration. In this

context, I may note that to facilitate adjudication of the matter,

procedurally the Court undertakes various steps. And in that

process, it may prima facie observe or record certain aspects

based on the counsel’s representations. They are sans pleadings

and sans evidence. Such observations do acknowledge the

parties existing rights if any, but they do not create rights on

their own. A Court’s observation cannot give rise to a right

unless it has already existed, nor does it provide a cause of

action. Here, in this case it had never been in the Court’s

contemplation as to who contributed the sale consideration. It is

a non sequitur. {Para 35}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

INTERIM APPLICATION (L) NO. 11624 OF 2021

IN

SUIT NO. 2700 OF 2011

RAJESH SAICHAND SHARMA Vs SUDERSHAN GANGARAM RAJULA 

CORAM : DAMA SESHADRI NAIDU, J.

DATE : 11th JUNE, 2021.

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