Bombay High Court
Abdul Shakeel S/O Abdul Karim And ... vs Shaikh Israil S/O Shaikh Ahmad And ... on 2 August, 2017
Bench: I.K. Jain
wp.605.16.jud 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.605 OF 2016
01] Abdul Shakeel s/o Abdul Karim,
Aged 46 years, Occ. Business.
02] Abdul Aqeel s/o Abdul Karim,
Aged 40 years, Occ. Business.
03] Abdul Jamill s/o Abdul Karim,
Aged 36 years, Occ. Business.
04] Abdul Haseen s/o Abdul Karim,
Aged 30 years, Occ. Business.
1 to 4 r/o Near House of Barkat Panwale,
Nalsaheb Chowk, Timki Road, Nagpur.
05] Smt. Gulshan Ara w/o Abdul Matee Siddiquee,
Aged 46 years, Occ. Housewife,
R/o Near Chuna Masjid, Timki Nagpur.
06] Smt. Nasreen Ara w/o Sher Ali,
Aged 31 years,
R/o Near Bus Stand, Hinganghat,
District Wardha.
07] Smt. Farheen Ara d/o Abdul Karim,
Aged 27 years.
08] Abdul Karim Abdul Jabbar Miya,
Aged 64 years.
7 & 8 r/o Near House of Barkat Panwale,
Nalsaheb Chowk, Timki Road, Nagpur. .... Petitioners
-- Versus -
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01] Shaikh Israil s/o Shaikh Ahmad,
Aged 59 years, Occ. Service.
02] Shaikh Mukhtar s/o Shaikh Ahmad,
Aged 54 years, Occ. Private.
1 & 2 r/o Near House of Barkat Panwale,
Nalsaheb Chowk, Timki Road, Nagpur
03] Mrs. Bismillah wd/o F.R. Khan,
Aged 81 years,
R/o Near Karnal Bagh Masjid,
Model Mill Old Gate, Karnal Bagh, Nagpur.
04] Mrs. Kalimabi w/o Malik Abdul Kadar,
Aged 64 years,
R/o Near Markaz Jamate Islami,
Teacher Colony, Jafar Nagar, Nagpur-13.
05] Mrs. Abida Begum w/o Abdul Aziz Tazi,
Aged 44 years, R/o Lucky Decoration,
Opp. Quidwai Ground,
Lashkari Bagh, Nagpur. .... Respondents
Shri N.A. Vyawahare, Advocate for the Petitioners.
Shri D.G. Paunikar, Advocate for Respondent Nos.1 & 2.
CORAM : KUM. INDIRA JAIN, J.
DATE : AUGUST 2, 2017.
ORAL JUDGMENT :-
Rule. Rule made returnable forthwith. Heard finally
with the consent of learned Counsel for the parties.
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02] The challenge in petition is to the order dated
13/10/2015 passed by the learned Adhoc District Judge, Nagpur
in M.C.A. No.524/2014 thereby rejecting an application filed by
petitioners for restoration of M.C.A. No.660/2012 dismissed on
11/08/2014 filed for restoration of R.C.A. No.58/2009, which was
dismissed in default on 24/08/2012.
03] The facts giving rise to the petition may be stated in
brief as under :
i. Respondents filed suit for declaration and permanent
injunction in the year 2000. Suit was decreed on
21/02/2006 and petitioners were directed to remove
construction on the marginal space. The judgment
and decree passed by the trial Court was carried in
appeal before the first Appellate Court along with an
application for condonation of delay. Vide order dated
24/08/2012, learned District Judge, Nagpur dismissed
the application for condonation of delay in default.
Thereafter, petitioners preferred M.C.A. No.660/2012
for restoration of application for condonation of delay,
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which was dismissed in default. The said application
was also dismissed in default on 11/08/2014.
Petitioners filed M.C.A. No.524/2014 for restoration of
M.C.A. No.660/2012. Learned Adhoc District Judge
dismissed the application on merits. Being aggrieved
thereof, petitioners have filed this petition.
04] Respondents submitted written submission and raised
preliminary objection to the maintainability of petition.
According to respondents, order passed by the Appellate Court is
a decree, and second appeal under Section 100 of the Code of
Civil Procedure would lie and not the writ petition.
05] Learned Counsel for petitioners placed reliance on
Kamla Bajpai and others vs. Smt. Sharda Devi Bajpai and
others - [AIR 2002 MADHYA PRADESH 262] and submitted
that appeal is not maintainable against the order passed under
Order 41 Rule 19 of the Code of Civil Procedure and the remedy
lies in writ petition.
06] In response to the submission and the judgment relied
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upon by Shri N.A. Vyawahare, learned Counsel for petitioners,
Shri D.G. Paunikar, learned Counsel for respondents relied upon
the decision of this Court in Chandrakant Somnath Melge vs.
Balasaheb Somnath Melge - [2017(2) ALL MR 624] and
submitted that order passed by the Appellate Court was a decree
and second appeal would be maintainable in such a case.
07] Before pondering into the preliminary objection raised
on behalf of respondents, it would be appropriate to reproduce
here the reasons recorded in paragraph 8 of the said order,
which reads thus :
"08] Upon hearing the submissions made on behalf
of the applicant/appellant and respondents/plaintif
and the documents i.e. certified copies of the
application filed by the appellant under Order 41 Rule
19 of the C.P.C. bearing M.C.A. No.660/2012, order
passed on 11/08/2014 on Exh.1 about dismissal and
the certified copy of the order-sheet from 12/06/2013
to 11/08/2014, it reveals that though learned counsel
for the appellant was present most of the time, fails to
argue the appeal and not a single application for
adjournment filed though the matter was adjourned
repeatedly for about 23 times for hearing.
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Admittedly, suit is decreed on 21/06/2006 in favour of
the respondent/plaintif and the execution proceeding
filed for possession is also pending for about 10 years.
It is to be noted that after decreeing the suit, appeal
was preferred with application for condonation of
delay vide M.C.A. No.58/2009 for about 3 years which
is dismissed on 24/08/2012. Another application for
restoration of the said M.C.A. bearing M.C.A.
No.600/12 dismissed on 11/08/2014. These dates
shows that appeal was filed after 3 years, application
for condonation of delay was not argued for 3 years,
after its dismissal restoration application was also not
argued for 2 years."
08] From the above reasons, it is apparent that order is
legal and proper. No interference is thus warranted in writ
jurisdiction. Hence, the following order :
ORDER
I. Writ Petition No.605/2016 stands dismissed.
II. Rule is discharged.
III. No costs.
*sdw (Kum. Indira Jain, J)
