Bombay High Court
Jagannath Asaram Gaikwad And ... vs Sukhchand Mannulal Panbisare ... on 29 February, 2016
Bench: T.V. Nalawade
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.
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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.
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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.
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Shri. Mohit R. Deshmukh, Advocate, for appellants.
Respondents 1a to 1c - served.
Shri. D.K. Kulkarni, Advocate, for respondent No.10.
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CORAM: T.V. NALAWADE, J.
DATE : 29th FEBRUARY 2016
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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
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
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
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
