Bombay High Court
Sk. Pashamiya S/O Babamiyan ... vs Sk. Ibrahim S/O Sk. Mohammed & Ors on 2 December, 2016
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION NO.41 OF 2016
IN
CIVIL APPLICATION NO.5510 OF 2001
IN
SECOND APPEAL NO.400 OF 1993
1. Sk. Pashamiya Babamiyan Shaikh APPLICANTS
Died, Through LRs
1A. Waheda Begum w/o Pashamiya
Age - 48 years, Occ - Household
1B.
Chotibegum d/o Sk. Pashamiya
Age - 26 years, Occ - Household
1C. Sk. Salim s/o Pashamiya,
Age - 25 years, Occ - Education
1D. Munnibegum d/o Sk. Pashamiya,
Age - 18 years, Occ - Education
All R/o Georai, Taluka - Georai
District - Beed
2. Sayed Riyazoddin s/o Sayed Aminoddin
Age - 63 years, Occ - Agriculture
R/o Georai, Taluka - Georai
District - Beed
VERSUS
1. Sk. Ibrahim Sk. Mohammed RESPONDENTS
Died, through His legal Heirs
1A. Nazira w/o Sk. Ibrahim
Age - 70 years, Occ - Household
1B. Sk. Dagdu s/o Sk. Ibrahim
Age - 53 years, Occ - Labourer
1C. Rashida d/o Sk. Ibrahim
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Age - 35 years, occ - Household
All R/o Korbu Galli Tahetania
Urdu School, Georai
District - Beed
2. The President,
Municipal Council Georai,
Taluka - Georai, District - Beed
3. Marathwada Wakf Board,
Through its Secretary,
Panchakki, Aurangabad
4. Sk. Karim s/o Sk. Chand (Died)
Through his legal heirs
4A. Shaikh Shammu s/o Sk. Karim
Age - 45 years, Occ - Labourer
R/o Korbu Galli, Georai,
Taluka - Georai, District - Beed
5. Sk. Rahim s/o Shaikh Budhan (Died)
Through his legal heirs
5A. Fateembee w/o Rahim
Age - 75 years, occ - Household
5B. Sk. Shafiq s/o Sk. Rahim
Age - 75 years, Occ - Household
5C. Sk. Mukhatar s/o Sk. Rahim
Age - 45 years, Occ - Labourer
5D. Sk. Abbu s/o Sk. Rahim
Age - 30 years, Occ - Labour
All R/o Mondha Road,
Korbu Galli Sharif Gadi Ghar
Makka Masjid Georai
District - Beed
.......
Mr. V. S. Bedre h/f Mr. A. G. Talhar, Advocate for the applicants
Mr. H. I. Pathan, Advocate for respondent No.3
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Mr. M. I. Indani, Advocate for respondents No.1 A to 1C, 4A
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 2nd DECEMBER, 2016
ORAL JUDGMENT :
1. Heard learned advocates for the parties.
2. A review is sought of an order dated 30 th March, 2010
whereunder, civil
ig application No.5510 of 2001 seeking
restoration of second appeal No.400 of 1993 has been
dismissed.
3. Learned advocate for the applicants submits applicant
No.1-A, is an aged pardahnashin muslim lady. Appellants -
plaintiffs had instituted Regular Civil Suit No.159 of 1975 for
declaration of ownership and injunction in respect of suit
properties. The same had been decreed, however, Regular Civil
Appeal No.40 of 1985 filed by the defendants came to be allowed
setting aside the decree in regular civil suit No.159 of 1975.
Second appeal No.400 of 1993 therefrom by the appellants -
plaintiffs present applicants had been pending for final hearing.
During pendency of the second appeal, respondent No.1 died
and since legal heirs of respondent No.1 were not brought on
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record, the second appeal was dismissed as abated.
4. Learned advocate, thus, purports to submit that taking into
account aforesaid and that the appellants - plaintiffs - applicants
have a strong case on merits and further that them being poor,
as such, indulgence be given to the request being made for
review of the order.
5. Whereas, learned advocates for the respondents refer to
observations as are appearing in order dated 30th March, 2010
and point out that despite letter by advocate for the appellants,
the same was not heeded and the matter was not prosecuted
and, therefore, this court has observed that there are
unpardonable lapses and remisses and those have not been
accounted for properly.
6. Perusal of the order under review shows that apart from
aforesaid, it has been noted that parties are staying in close
proximity and it is difficult to consider that death of respondent
No.1 went unnoticed and also regard may be had to that their
advocates communication had not been paid heed to. The court
had thus considered that there is inordinate delay in moving
application for setting aside abatement.
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7. Having regard to aforesaid, it is not the case, wherein it
can be said that there is apparent error on the face of record.
Discretion with reference to the observations has been exercised
by the court, which would not be termed to be away from factual
position.
8. In the circumstances, I do not find any merit in the review
application and the same stands dismissed.
ig [SUNIL P. DESHMUKH, J.]
drp/ra41-16
