1 AO 2 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Appeal from Order No.2 of 2016
1) Jagannath s/o Asaram Gaikwad,
Age 54 years,
Occupation : Service,
R/o Plot No.9, Survey No.224/1,
Harsool,
Taluka and District Aurangabad.
2) Sk. Muhammad s/o Sk. Rasheed
Age 44 years,
Occupation : Business,
R/o Plot No.58, Survey No.224/1,
Harsool,
Taluka and District Aurangabad. .. Appellants.
Versus
1) Sukhchand s/o Mannulal Panbisare
Through his legal representatives
(proposed)
1a. Mannu s/o Sukhchand Panbisare,
Age Major, Occu: Agriculture.
1b. Kannu s/o Sukhchand Panbisare,
Age Major, Occu: Agriculture.
1c. Channu s/o Sukhchand Panbisare,
Age Major, Occu: Agriculture.
All R/o Jatwada Road, Harsool Talav,
Taluka and District Aurangabad.
2) Gujarabai w/o Babulal Panbisare,
Age 78 years,
Occupation : Agriculture.
::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:09:13 :::
2 AO 2 of 2016
3) Bhojalal s/o Heeraman Panbisare,
Age 70 years,
Occupation : Agriculture.
4) Ganesh s/o Babulal Panbisare,
Age 50 years,
Occupation : Business.
5) Totaram s/o Babulal Panbisare,
Age 56 years,
Occupation : Service.
6) Hiralal s/o Bhojalal Panbisare,
Age 48 years,
Occupation : Business.
7) Mangal w/o Hiralal Panbisare,
Age 43 years,
Occupation : Household.
8) Mohan s/o Bhojalal Panbisare,
Age 43 years,
Occupation : Service.
9) Tuljaram s/o Bhojalal Panbisare,
Age 31 years,
Occupation : Service.
All R/o Jatwada Road,
Near Harsool Talav, Aurangabad.
10) Sk. Nazir s/o Sk. Ibrahim,
Age 54 years,
Occupation : Business,
R/o Jatwada Road,
Near Harsool Talav, Aurangabad.
11) Gulab s/o Parbat Salampure,
Age 44 years,
Occupation : Service,
R/o Pahadsingpura,
Nipat Niranjan Road,
Aurangabad.
::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:09:13 :::
3 AO 2 of 2016
12) Keshav s/o Tuljaram Salampure,
Age 58 years,
Occupation : Service,
R/o As above.
13) Bhavendra s/o Jassubhai Patel,
Age 44 years,
Occupation : Business,
R/o Shah Bazar, Ashok Nagar,
Aurangabad.
14) Sakina Begum w/o Mirza Mustafa,
Age 44 years,
Occupation : Household.
15)
Habib Khan s/o Bashir Khan,
Age 55 years,
occupation : Business,
R/o As above.
16) Haribhau s/o Asaram Jagtap,
Age 44 years,
occupation : Business,
R/o Jatwada Road,
Harsool Talav,
Taluka & District Aurangabad. .. Respondents.
--------
Shri. Mohit R. Deshmukh, Advocate, for appellants.
Respondents 1a to 1c - served.
Shri. D.K. Kulkarni, Advocate, for respondent No.10.
----------
CORAM: T.V. NALAWADE, J.
DATE : 29th FEBRUARY 2016
::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:09:13 :::
4 AO 2 of 2016
JUDGMENT:
1) The appeal is admitted. Notice after admission, made returnable forthwith. By consent heard for final disposal.
2) The appeal is filed to challenge common order made by the learned Ad-hoc District Judge-2, Aurangabad on Exhibits 15, 16 and 19 of MARJI No.5/2011. MARJI No.5/2011 is filed by present appellants for condonation of delay caused in filing appeal against the judgment and decree of RCS No.451/2006. The suit was filed by Sukhchand Panbisare for relief of perpetual injunction and mandatory injunction and such decree is given. The trial Court has indirectly directed defendant Nos.9 and 11, present appellants, to hand over possession of area of 600 square feet and 540 square feet by removing the construction made on these portions by the appellants on land Gat No.224/2 from village Harsool, Taluka and District Aurangabad.
3) It appears that as delay was caused in filing appeal, aforesaid application (5/2011) is filed in District ::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:09:13 ::: 5 AO 2 of 2016 Court for condonation of delay. During pendency of the application, report was received that plaintiff Sukhchand was dead. Delay of about 3 years and 6 months was caused in bringing legal representatives of Sukhchand on record of aforesaid MARJI and so Exhibits 15, 16 and 19 were filed. The District Court has rejected the applications by observing that the present appellants had the knowledge about death of the plaintiff as Execution Petition No.138 of 2010 was filed and in that matter, the legal heirs of plaintiff had applied for permission to come on the record of the proceedings of the execution proceeding and in that matter objection petition is filed by the present appellants and that was filed in the year 2011.
4) On merits, many things can be observed with regard to the judgment and decree but this Court is avoiding to do so. The only circumstance which needs to be mentioned to show that opportunity needs to be given to take decision on merit on appeal is that in a suit filed for perpetual injunction and mandatory injunction, the trial Court has virtually directed the present appellants to ::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:09:13 ::: 6 AO 2 of 2016 hand over possession of aforesaid two pieces of land by removing the constructions made on those portions by the appellants.
5) The suit was filed in the Court of the Civil Judge, Junior Division and present appellants are contending that they are the purchasers under registered sale deeds of the disputed portions. Address of Sk.
Mohammad is given as Jatwada Road, Aurangabad when similar address is given by the plaintiff. Though these circumstances are also there it can be said that the counsels generally do not call the parties to the appellate Court and matters are attended in appellate Court only by Advocates. In execution petition, present appellants had filed objection petition but they had not informed to their counsel in the District Court about death of Sukhchand which is mentioned in execution proceeding by legal representatives of Sukhchand. Nothing could have been achieved by the present appellants by not taking such steps in time. But the appellants have filed objection to the application filed by legal representatives of Sukhchand as the legal representatives wanted to ::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:09:13 ::: 7 AO 2 of 2016 prosecute the execution proceeding. This Court holds that opportunity needs to be given to the appellants in the matter to take decision on merit in the appeal. In view of the aforesaid circumstances, the delay caused in bringing legal representatives of Sukhchand on the record needs to be condoned. In the result, following order is made :-
6) The appeal is allowed and order made on Exhibits 15,16 and 19 of MARJI No.5/2011 pending in the Court of the Ad-hoc District Judge-2 Aurangabad is hereby set aide. The application filed for condonation of delay and for bringing legal representatives of original plaintiff, respondent of the proceeding bearing MARJI No.5/2011 is allowed. Delay is condoned. Abatement is set aside and permission is granted to bring legal representatives on the record. This order is subject to condition of deposit of cost of Rs.3000/- (Rupees Three Thousand only) within one month in this Court. Only after depositing the cost amount, the order is to be sent to District Court.
Sd/-
(T.V. NALAWADE, J. ) rsl ::: Uploaded on - 02/03/2016 ::: Downloaded on - 31/07/2016 07:09:13 :::