Bombay High Court
Alka Sanjay Adhav And Another vs Sahebrao Dagdu Bachkar And Others on 20 December, 2016
Bench: T.V. Nalawade
WP No. 6357/2016
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 6357 OF 2016
1. Sau. Alka w/o. Sanjay Adhav,
Age 47 years, Occu. Agriculturist,
2. Shri. Gangadhar Natha Bhingare,
Age 54 years, Occu. Agriculturist,
Both R/o. Manori, Tq. Rahuri,
Dist. Ahmednagar. ....Petitioners.
Versus
1. Shri. Sahebrao Dagdu Bachkar,
Age 54 years, Occu. Agriculturist,
2. Shri. Gorakshanath Sahebrao Bachkar,
Age 23 years, Occu. Agriculturist,
Both R/o. Manori, Tq. Rahuri,
Dist. Ahmednagar.
3. Sau. Babetai Balasaheb Shinde,
Age 48 years, Occu. Agriculturist,
4. Shri. Dattatray Pandurang Adhav,
Age 70 years, Occul. Agriculturist,
5. Shri. Vithal Pandurang Adhav,
Age 67 years, Occu. Agriculturist,
6. Shri. Baban Pandurang Adhav,
Age 65 years, Occu. Agriculturist,
7. Shri. Bhagwat Pandurang Adhav,
Age 62 years, Occu. Agriculturist,
8. Prayagabai Vitthal Adhav,
Age 61 years, Occu. Agriculturist,
9. Shri. Kalpana Janardhan Adhav,
Age 40 years, Occu. Agriculturist,
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WP No. 6357/2016
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10. Shri. Bhau Genu Shinde,
Age 70 years, Occu. Agriculturist,
Resp. Nos. 3 to 10 R/o. Village
Manori, Tq. Rahuri, Dist. Ahmednagar.
11. Shri. Manohar Genu Shinde,
Age 60 years, Occu. Agriculturist,
12. Shri. Dattatray Sajan Mhase,
Age Major, Occu. Agriculturist,
13. Meena Haribhau Tarde,
Age Major, Occu. Household,
14.
Sindhubai Sajan Mhase,
Age Major, Occu. Household,
Resp. Nos. 11 to 14 R/o. Aradgaon,
Tq. Rahuri, Dist. Ahmednagar.
[Resp. Nos. 3 to 14 were deleted
as per the order made by this
Court on 21.6.2016] ....Respondents.
Mr. N.B. Patekar, Advocate for petitioners.
Mr. R.A. Lade h/f. Mr. A.A. Nimbalkar, Advocate for respondent
Nos. 1 and 2.
CORAM : T.V. NALAWADE, J.
DATED : 20th December, 2016.
ORAL JUDGMENT :
1) Rule. Rule made returnable forthwith. By consent,
heard both the sides for final disposal.
2) The petition is filed to challenge the order made on
Exh. 38 in Regular Civil Suit No. 409/2011. The suit is pending in
WP No. 6357/2016
the Court of Civil Judge, Junior Division, Rahuri. The suit is filed
by present respondents for relief of injunction and for fixing the
boundary marks and for removal of encroachment, if any, made
by the defendants.
3) 'No W.S. Order' is made against the present
petitioners, defendants and the application filed by them for
setting aside the 'No W.S. Order' and for delay condonation is
rejected by the Trial Court. It appears that after about four years
the application for setting aside the 'No W.S. Order' was filed.
4) In view of nature of dispute, which can be seen in the
plaint, this Court holds that opportunity needs to be given to the
defendants to take the decision on merits. However, plaintiff is
required to spend on present proceeding and there is possibility
that defendants are playing delaying tactics. In view of these
circumstances, this Court holds that some cost needs to be
imposed on defendants for allowing them to file written
statement.
5) In the result, the petition is allowed, subject to
depositing of cost of Rs. 15,000/- in Trial Court on or before
6.1.2017. The amount of Rs. 10,000/- is already deposited by the
WP No. 6357/2016
petitioner. The remaining amount of Rs.5,000/- is to be deposited
in this Court prior to 6.1.2017. If the amount is deposited in this
Court, that amount is to be sent to the Trial Court. If the amount
is deposited prior to aforesaid date, it is to be presumed that
'No W.S. Order' is set aside and opportunity needs to be given to
defendants to file written statement and it is to be presumed
that delay, if any, caused in filing written statement is condoned.
If the amount is not deposited, it is to be presumed that the
present petition is dismissed. The suit is to be expeditiously
disposed of and in any case, within six months from 6.1.2017.
Rule is made absolute in aforesaid terms.
[ T.V. NALAWADE, J. ]
ssc/
