Prakash Manga Chaudhari vs Smt. Vijaya Ghanshyam Birhade And ...
2016 Latest Caselaw 4984 Bom

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     drp
             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                         
               CIVIL REVISION APPLICATION NO.40 OF 2016




                                                 
     Prakash Manga Chaudhari                                       APPLICANT
     Age - 60 years, Occ - Retired
     R/o Ram Nagar, Abhay Colony,
     Dhule




                                                
              VERSUS

     1.       Vijaya Ghanshyam Birhade                        RESPONDENTS




                                        
              Age - 45 years, Occ - Household
              R/o Plot No.21, C. S. No.2/1
                             
              Gautam Co-op Housing Society,
              Gandoor Road, Dhule

     2.       Sub-Registrar,
                            
              Co-operative Society, Dhule

     3.       The Chairman,
              Gautam Gruh Nirman Co-op. Society,
      

              Gandoor Road, Dhule
   



     4.    Nitin Ghanshyam Birhade
           Age - 38 years, Occ - Nil
           R/o Lane No.7, Near Wagkinar Masjid,
           Moglai, Dhule
           Taluka and District - Dhule





                                    .......

Mr. C. R. Deshpande, Advocate for the applicant Mr. Amot Sawant h/f Mr. A. D. Sonar, Adv. for respondent No.1 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 25th AUGUST, 2016

ORAL JUDGMENT:

1. Rule. Rule made returnable forthwith and heard learned

advocates for the appearing parties, finally with consent.

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2. Learned advocate for the applicant strenuously contends

that the order passed in the proceedings pursuant to Order IX,

Rule 13 of the Civil Procedure Code is unsustainable, albeit, a

Miscellaneous Civil Appeal has been carried therefrom, however,

had failed on technicalities. He submits that in spite of service,

present respondent No.1 had failed to cause appearance, apart

from aforesaid he submits that a public notice had been issued

and in the circumstances, the suit for specific performance came

to be decreed.

3. Whereas, it appears to be the contention on behalf of

respondent No.1 that the situation is properly taken care of in

the observations as are appearing in paragraph No.17 of the

judgment delivered by the first appellate court. It is further

being submitted that there is no public notice issued at all and

there is no substance in such contention.

4. Mr. Sawant, learned advocate for respondent No.1 on

instructions states that the suit after restoration has progressed

further and evidence is being led by the parties and the plaintiff

is under cross examination by the defendants. Learned advocate

for the applicant, however, is not in a position either to accept or

dispute the submission.

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5. However, looking at that the suit after restoration is now in

progress, there is little point in going ahead with the civil

revision application. In the scenario, the civil revision application

is not being entertained and stands dismissed. Rule stands

discharged.

6. Learned advocate for the applicant at this stage urges to

leave it open for the applicant to take up such contentions as

would be allowed, having regard to provisions of Order XLIII

Rule 1-A of the Civil Procedure Code as has been observed by

the first appellate court in paragraph No.9 of the judgment. As

such, such a liberty is not affected by dismissal of present civil

revision application.

[SUNIL P. DESHMUKH, J.]

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