Bombay High Court
Sudam S/O. Champat Gajbhiye vs Mohd. Ismail S/O. Nathubhai ... on 26 July, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 6029 OF 2015
PETITIONER: Sudam S/o Champat Gajbhiye, age
72 yrs., Occ-Agriculturist, R/o
(Ori. Plff)
Ladegaon, Tq. Arvi, Dist.Wardha.
-VERSUS-
RESPONDENTS: 1. Mohd. Ismail S/o Nathubhai Pinjari,
Age - Adult, Occ-Cultivator &
Ori. Deft No.2
business,
Ori. Deft No.3 2. Mustaf Ahmad S/o Nathubhai Pinjari,
Age - Adult, occ-cuotivator &
Ori. Deft No.4
ig business,
3. Mohmmad Shafi S/o Nathubhai
Pinjari, Age - Adult Occ- Household,
Ori. Deft No.5 4. Sugrabu Shamiullakhan Pinjari, Age -
Adiult, Occ-cultivator& household,
Ori. Deft No.6 5. Shamsahed Begum w/o Abdul Gaffar,
Age - Adult, Occ-household &
cultivator.
Ori. Deft No.7 6. Sheikh Mohmmad S/o Sheikh Karim
Pinjari, Age - Adult Occ-Cultivator,
Deft. No.1. 7. Natthubhai Subhanmiya Pinjari, Age
- Adult occ-Cultivator (Now
Deceased)
Respdt. No.2 to 5 R/o Mominpura,
Bari Chauk Respdt.
R - no.6 r/o Hansapuri Nagpur, Tq.
Dist.- Nagpur.
Shri T. G. Bansod, Advocate for the petitioner.
Respondent Nos.1 to 6 served by paper publication .
CORAM: A.S. CHANDURKAR, J.
DATED: 26
th JULY, 2016.
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ORAL JUDGMENT :
1. As notice for final disposal of the writ petition has been
duly served, the learned Counsel for the petitioner has been heard
at length by issuing Rule and making the same returnable
forthwith.
2. The petitioner who is the appellant in R.C.A.
No.228/2009 is aggrieved by the order dated 14-9-2015 passed by
the learned District Judge-2, Wardha thereby recalling the earlier
order dated 3-2-2015 and directing the petitioner to take steps to
serve the respondents in the appeal.
3. The petitioner had filed Regular Civil Suit No.23/2006
for specific performance of the agreement dated 12-2-1996. The
trial Court dismissed the suit and this judgment is challenged in
R.C.A. No.228/2009. After service on the respondents, the
appellate Court directed the appeal to proceed exparte against said
respondents. When the appeal was thereafter taken up for
hearing, the learned District Judge-2 on 14-9-2015 observed that
as the addresses mentioned on the envelopes were different from
the addresses mentioned in the cause title, steps should be taken
to serve the said respondents afresh. This order is under challenge
in the present writ petition.
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4. Shri T. G. Bansod, the learned Counsel for the
petitioner submitted that the petitioner was permitted to serve the
unserved respondents by paper publication, after the Court was
duly satisfied about the efforts taken by the petitioner to serve the
said respondent. It was, therefore, not open for the Court to suo
motu direct the petitioner to again serve the said respondents. He
submitted that this order was passed when the appeal was to be
heard finally. He further submitted that even notices in the present
writ petition were served on the respondents through paper
publication. According to him, the respondents were not
interested in prosecuting the proceedings as the respondent no.6
had already executed a sale deed for part of the suit property in
favour of the petitioner.
5. Perusal of the orders passed below Exhibit-1 in the
appeal indicate that the petitioner was permitted to serve the
unserved respondents through paper publication. Thereafter, the
appeal was directed to proceed exparte against them on 3-2-2015.
In this background, therefore, the further order dated 14-09-2015
was uncalled for especially when due satisfaction was recorded by
the Court on 3-2-2015 after completion of service. The fact that
the respondents are not interested in prosecuting the appeal, it is
also obvious from their non-appearance in the present writ
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petition.
6. In view of aforesaid and considering the earlier order
dated 3-2-2015, the order dated 14-9-2015 passed below Exhibit-1
is set aside. The appeal shall be heard on its own merits by
proceeding further in terms of order dated 3-2-2015. Rule is made
absolute in aforesaid terms. No costs.
JUDGE
//MULEY//
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