Bombay High Court
Shri Deorao Sitaram Vaidya vs Smt. Chhayabai Tulshiram Fandi ... on 2 April, 2016
Bench: Prasanna B. Varale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 5925 OF 2015
PETITIONER : Deorao Sitaram Vaidya,
Aged 76 years, R/o Jaistambha Chowk,
Prabhag No.3, Mouda, Tahsil Mouda,
District Nagpur.
- VERSUS -
RESPONDENTS : 1] Smt. Chhayabai Tulshiram Fandi, aged 60 years.
ig 2] Sanjay Tulshiram Fandi, Aged 30 years,
3] Smt. Ratnamala Tulshiram Fandi, Aged 28 years,
4] Hemraj Tulshiram Fandi, Aged 26 years,
5] Smt. Yogita Tulshiram Fandi, Aged 23 years,
6] Uttamrao Lataru Fandi, Aged 55 years,
All R/o Prabhag No.2, Mouda, Tah. Mouda,
District Nagpur.
7] Chief Conservator of Forest,
Nagpur Division, Civil Lines, Nagpur.
WITH
WRIT PETITION NO. 5612 OF 2015
PETITIONERS : 1] Smt. Chhayabai Wd/o Tulshiram Fandi,
aged 70 years, Occu. Household.
2] Sanjay S/o Tulshiram Fandi,
Aged 31 years, Occu. Agriculturist,
3] Smt. Ratnamala D/o Tulshiram Fandi,
Aged 29 years, Occu. Household
4] Hemraj S/o Tulshiram Fandi,
Aged 28 years, Occu. Agriculturist,
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5] Yogita D/o Tulshiram Fandi,
Aged 26 years, Occu. Household
6] Uttam S/o Lataruji Fandi,
Aged 55 years, Occu. Agriculturist
All petitioner no.1 to 6 are R/o Sharda Chowk,
Mouse, Tah. Mouda, Dist. Nagpur
- VERSUS -
RESPONDENT : Deorao S/o Sitaram Vaidya,
Aged 73 years, Occu. Business & Agriculturist,
R/o Near Jaistambha, Mouda, Tahsil Mouda,
District Nagpur.
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Mr. A. M. Ghare, Advocate for the petitioner in WP No.5925/15
and for the respondent in WP No. 5612/15
Mr. A. K. Neware, Advocate for the respondent nos.1 to 6 in
WP No.5925/15 and for the petitioners in WP No. 5612/15
Ms. Tajwar Khan, A.G.P. for respondent no.7 in W.P. No. 5925/15.
------------------------------------------------------------
CORAM : PRASANNA B. VARALE, J.
DATE : APRIL 02, 2016.
ORAL JUDGMENT
Rule. Rule made returnable forthwith. With the consent of
the learned counsel for the parties, the matters are taken up for final
disposal.
2] Both these petitions, challenge the order, dated
30.07.2015, passed by the learned Civil Judge, Junior Division, Mouda
in Regular Darkhast No. 08/2013.
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3] Mr. Ghare, the learned counsel for the petitioner in W.P.
No. 5925/2015 submits that the learned Civil Judge, Junior Division,
Mouda, while considering the rival contentions of the parties namely
petitioner and the respondent nos.1 to 6 herein, in stead of considering
the issue in respect of judgment and decree, more particularly, the order
dated 04.01.2006, passed in Special Civil Suit No. 1063/1997,
erroneously proceeded by placing wrong reliance on the order passed by
this Court in Writ Petition No. 929/2012. It is the submission of the
learned counsel Mr. Ghare that in W.P. No.929/2012, the issue was
altogether different and an action of the Deputy Conservator of Forest
was under challenge in the writ petition. The forest officials directed
sealing of saw mill. Being aggrieved by the order of sealing of saw mill,
the petitioner had approached this Court.
4] Mr. Ghare, the learned counsel invited my attention to the
order passed by this Court in Writ Petition No. 929/2012, a copy of
which is placed on record at Annexure-D. The submission of the
learned counsel is this Court, though, referred to the contentions of the
counsel appearing for the parties as well as the controversy involved in
the petition, in detail, found that there was no observance of principal
of natural justice by the appellate forum i.e. the Deputy Conservator of
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Forest, Nagpur Division, Nagpur. It was observed by this Court that
though, the petitioner has filed petition before the appellate forum i.e.
Deputy Conservator of Forest, Nagpur, the order was passed without
hearing the petitioner (appellant before him), who had filed the appeal.
Considering that aspect of the matter, the petition was partly allowed
and the order passed by the Deputy Conservator of Forest, dated
07.01.2012 was quashed and set aside. The Deputy Conservator of
Forest, Nagpur was further directed to decide the appeal afresh by
giving opportunity of hearing to the petitioner as well as respondent
nos.2 to 7.
5] Mr. Ghare, the learned counsel submits that insofar as
contest of the parties on account of Sale Deed is concerned, the
submission of the petitioner in W.P. No. 5925/2015 is, there was no
part payment of the amount agreed, whereas it was the contention of
the petitioners in W.P. No. 5612/2015 that the essence of the contract
between the parties was time and though, the time was prescribed in
the Sale Deed, the petitioner in W.P. No.5925/2015 failed to pay the
amount within the stipulated period and paid the same after much lapse
of time i.e. after four years. Mr. Ghare, the learned counsel submits that
these issues were ought to have been considered and decided by the
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appropriate forum like the competent Civil Court and the parties could
not have approached the forest official for settling their dispute, which
is in the nature of civil dispute. The learned counsel Mr. Ghare then
submitted that on these backdrops, the observation of the learned Civil
Judge, Junior Division, Mouda that the objections can only be
considered by the Appellate forum is an erroneous observation for the
reason that the appeal was filed against the order of the forest officer
and in any event, the forest officer could not have gone into the issue of
rights of the parties under the decree. The forest official could have
only gone into the issue whether sealing of the saw mill was proper or
otherwise or which of the party holds the valid and proper licence.
6] Mr. Neware, the learned counsel for the petitioners in W.P.
No. 5612/2015 fairly submits that the petitioners herein have also
challenged the order dated 30.07.2015 passed by the learned Civil
Judge, Junior Judge, Mouda, in R.D. No. 08/2013. He submits that the
learned Judge ought to have considered the contentions and the claims
of the parties in proper perspective, in stead of misdirecting itself on
placing erroneous reliance on the orders passed by this Court. Both the
learned counsel submit that it will be in the interest of the parties if the
order dated 30.07.2015, impugned in both the petitions, is quashed and
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set aside and the parties are permitted to approached the learned Civil
Judge, Junior Division, Mouda with a direction to the learned Judge to
decide the objections or claims of the parties afresh within a time frame.
7] In view of the above referred facts, in my opinion, the
course suggested by the counsel for the parties is just and proper. No
prejudice would be caused to any of the parties and the parties would
have an opportunity to contest their claim before the learned Judge.
8] In view of the aforesaid facts, the writ petitions are partly
allowed.
The order dated 30.07.2015 passed by the learned Civil
Judge, Junior Division, Mouda in Regular Darkhast No. 08/2013 is
hereby quashed and set aside. The learned Civil Judge, Junior Division,
Mouda is directed to hear the parties and pass the orders afresh. This
exercise be undertaken and concluded as early as possible and
preferably within a period of six months.
Rule is made absolutely accordingly. The writ petitions are
disposed in the aforesaid terms. No order as to costs.
JUDGE
Diwale
