Bombay High Court
Waman Abaji Lobhe And Another vs Omprakash Vyankatrao Lobhe And ... on 10 March, 2016
Bench: S.P. Deshmukh
1 WP-8627.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8627 OF 2015
1. Waman S/o Abaji Lobhe,
Age: 72 years, occ: Agril.
R/o: Kanegaon, Tq. Lohara,
District osmanabad.
2. Shrimant S/o Abaji Lobhe,
Age: 65 years, Occ.: Agri.,
R/o as above. ...PETITIONERS
(Ori.Defts.No.1 & 4)
versus
1.
Omprakash Vyankatrao Lobhe,
Age: 48 years, Occ: Agril.,
R/o: Kanegaon, Tq. Lohara,
District Osmanabad.
2. Kamlakar S/o Vyankatrao Lobhe,
Age: 45 years, occu: Agri.
R/o : as above.
3. Bhaskar S/o Vyankatrao Lobhe,
Age: 42 years, occu: Agri.,
R/o as above.
4. Vijaykumar S/o Waman Lobhe,
Age: 42 years, Occ: Pvt. Service,
R/o : As above.
At present R/o Dhumalwadi,
Tq. Akole, Dist. Ahmednagar.
5. Anilkumar S/o Waman Lobhe,
Age: 30 years, Occu: Agri & Service,
R/o as above.
At present Hingoli, Dist. Hingoli ...RESPONDENTS
(Respdt No. 1 to 3
are ori. Plff. and
respdt. Nos. 4 and 5
are ori.Defts.No.2 & 3)
WITH
WRIT PETITION NO. 8628 OF 2015
1. Vijaykumar S/o Waman Lobhe,
Age: 42 years, Occ: Pvt. Service,
R/o : Kanegaon, Tq. Lohara,
District Osmanabad
At present R/o Dhumalwadi,
Tq. Akole, Dist. Ahmednagar.
::: Uploaded on - 30/03/2016 ::: Downloaded on - 31/07/2016 08:27:49 :::
2 WP-8627.15
2. Anilkumar S/o Waman Lobhe,
Age: 30 years, Occu: Agri. & Service,
R/o : as above.
At present Hingoli, Dist. Hingoli ...PETITIONERS
(Ori.Defts. No.2 & 3)
versus
1. Omprakash Vyankatrao Lobhe,
Age: 48 years, Occ: Agril.,
R/o : Kanegaon, Tq. Lohara,
District Osmanabad.
2. Kamlakar S/o Vyankatrao Lobhe,
Age: 45 years, occu: Agri.
R/o : as above.
3. Bhaskar S/o Vyankatrao Lobhe,
Age: 42 years, occu: Agri.,
R/o : as above.
4. Waman S/o Abaji Lobhe,
Age: 72 years, occ: Agri.
R/o : Kanegaon, Tq.Lohara,
District Osmanabad.
5. Shrimant S/o Abaji Lobhe,
Age: 65 years, Occ.: Agri.,
R/o : as above. ...RESPONDENTS
(Respdt No. 1 to 3
are ori. Plff. and
respdt. Nos. 4 and 5
are ori. Defts.No.1 & 4)
.....
Mr. N.L. Jadhav, Advocate for petitioners
Mr. P.V. Barde, Advocate for respondents No. 1 to 3
.....
CORAM : SUNIL P. DESHMUKH, J.
DATED : 10th MARCH, 2016.
ORAL JUDGMENT :-
1. Rule. Rule made returnable forthwith. Heard the learned counsel for
appearing parties finally, with consent.
2. Petitioners - original defendants No. 1 to 4 are before this court
against orders dated 02-05-2015 below Exhibits - 79 and 81 passed by
civil judge, junior division, Lohara, District Osmanabad in regular civil suit
3 WP-8627.15
No. 64 of 2008 whereunder their request for setting aside "No written
statement" and "No say" orders against defendants No.1 and 4 and for
setting aside "ex-parte order" against defendants No. 2 and 3, has been
turned down.
3. After hearing learned counsel for parties, it transpires that despite
service of suit summons, defendants No. 2 and 3 - petitioners in writ
petition no. 8628 of 2015 had not caused their appearance in the suit.
Under the circumstances, "suit to proceed ex-parte" orders were passed
against them on 06-11-2014 and 23-09-2003 respectively. Though
defendants No. 1 and 4 - petitioners in writ petition No. 8627 of 2015 had
appeared in the suit, however, failed to file their written statement and say
to the application for temporary injunction. As such, "No written
statement" and "No say" order was passed against them on 12-04-2005. It
appears that petitioners had not been diligent in prosecuting the matter,
and as such, aforesaid orders came to be passed.
4. According to learned counsel for respondents No. 1 to 3, the matter
had been transferred from Omarga court to Lohara court. The parties to
suit thereafter appeared in the proceedings and subsequently the
petitioners - defendants prosecuted the matter and in fact, the evidence of
plaintiffs has also been led.
5. According to learned counsel for respondents, petitioners in writ
petition No. 8628 of 2015 filed application Exhibit-79 for setting aside "suit
to proceed ex-parte" order passed against them on 06-11-2014 and
23-09-2003 respectively, whereas petitioners in writ petition No. 8627 of
2015 filed application Exhibit-81 for setting aside "No written statement"
and "No say" orders against them on 12-04-2005, on 22-01-2015.
4 WP-8627.15
According to him, the defendants are deliberately procrastinating the
matter keeping away the plaintiffs from enjoyment of their legitimate
rights in the suit properties. Alternatively, having regard to the say filed to
applications Exhibits-79 and 81 heavy costs was requested to be imposed.
It is further being submitted by learned counsel for respondents-plaintiffs
that plaintiffs had been put in expenses due to the conduct of the
defendants and had to serve the certain defendants by paper publication.
It is therefore, requested by him that no indulgence be given to the
request of the petitioners and the costs be enhanced having regard to say
filed by plaintiffs to the applications Exhibits-79 and 81.
6. Taking into account aforesaid and that the parties appear from
muffosil area, petitioners - Waman S/o Abaji Lobhe and Shrimant S/o
Abaji Lobhe, appear to be a senior citizens having age of above 65 years,
the respondents have also been amenable to accept costs, considering that
hall mark of jurisprudence wherein decision on merits is preferred, the
situation can be met with by allowing the writ petitions, however, subject
to payment of costs, to take care of the inconvenience caused to the other
side.
7. As such, the petitions stand allowed. Impugned orders dated
02-05-2015 below Exhibits-79 and 81 passed by civil judge, junior
division, Lohara, District Osmanabad in regular civil suit No. 64 of 2008
stand set aside. Applications Exhibits-79 and 81 stand allowed on the
condition that petitioners shall deposit an amount of Rs.15,000/- in each of
the petition, to be paid to the plaintiffs, in the trial court, within a period of
six weeks from today. In case, amount of costs is not deposited by the
petitioners within the stipulated period, the impugned orders would stand
5 WP-8627.15
revived and writ petitions shall be deemed to have been dismissed without
further reference to the court.
8. Mr. Barde, learned counsel for the respondents-plaintiffs at this
stage requests for expeditious disposal of the suit which has been pending
since 2003. Mr. Jadhav, learned counsel for petitioners also requests for
expeditious disposal of another suit pending between the parties.
9. Having regard to that, suits pending between the parties are in
respect of the same subject-matter, civil judge, junior division, Lohara,
District Osmanabad may decide both the suits as expeditiously as possible,
preferably within a period of nine months from the date of receipt of writ
of this order.
10. Writ petitions are allowed in aforesaid terms. Rule is made absolute
accordingly.
Sd/-
( SUNIL P. DESHMUKH, J. )
MTK
