Nilkanth Baburao Mahajan vs Mathurabai Sitaram Mali
2017 Latest Caselaw 9179 Bom

                                      1                       WP-2373-14.doc



         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    BENCH AT AURANGABAD

                     WRIT PETITION NO. 2373 OF 2014


 Nilkanth Baburao Mahajan
 Age 70 years, occup. Agril.
 R/o Near Budhwar Darwaja,
 Erandol, Tq. Erandol,
 Dist. Jalgaon                                .. Petitioner
          versus
 Sau. Mathurabai Sitaram Mali,
 Age 76 years, occup. Agril.,
 R/o Near New Bus Stand, Erandol,
 Erandol, Tq. Erandol, Dist. Jalgaon       .. Respondent
         -----
 Mr. Vijay B. Patil, Advocate for petitioner
 Mr. P. S. Shendurnikar, Advocate for respondent


                               CORAM :    SUNIL P. DESHMUKH, J.

DATE : 29-11-2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned

counsel for parties finally by consent.

2. After hearing the counsel, it transpires that the

situation is circumscribed by decision of the supreme court

rendered way back in 2008 in the case of Eastern

Equipment & Sales Ltd. vs. ING. Yash Kumar Khanna,

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reported in 2008 ()) BCI 354 as well as another decision of

the supreme court in the case of Malayalam Plantations Ltd. vs.

State of Kerala and another, reported in 2010 DGLS (Soft.) 905 = 2011

AIR SCW 264.

3. Perusal of head-note in the decision in the case of

Eastern Equipments (supra) vividly makes clear legal

position obligating decision on application for reception of

additional evidence has to be rendered along with appeal.

It does not appear to be case that there has been any

alteration in the position referred to and coming forth under

the first decision.

4. As such, without getting into the merits of impugned

order dated 27-08-2013 and the arguments of learned

counsel, it would be expedient that said order be set aside

in view of decision of the supreme court in the case of

Eastern Equipments (supra), restoring applications Exhibits 18

and 20 for decision afresh.

5. Impugned order dated 27-08-2013 commonly passed

on Exhibits - 18 and 20 in regular civil appeal no. 43 of

2008 by District Judge - 4, Jalgaon is set aside. Exhibits

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18 and 20 are restored to their position as subsisting

immediately before impugned order was passed, to be

decided afresh along with appeal having regard to decision

of supreme court in the case of Eastern Equipments & Sales Ltd.

vs. ING. Yash Kumar Khanna, reported in 208 (0) BCI 354. It is made

clear, all points of parties are kept open to be agitated in

respect of applications Exhibits-18 and 20.

6. At this stage, learned counsel Mr. P. S. Shendurnikar

appearing on behalf of the respondent states that the

appeal is of the year 2008 and as such the same be

directed to be disposed of expeditiously.

7. The request appears to be fair and reasonable. The

appellate court to decide the appeal along with applications

Exhibits 18 and 20 expeditiously preferably within a period

of six months from the date of receipt of writ of this order.

8. Writ petition is disposed of. Rule made accordingly

absolute.

SUNIL P. DESHMUKH, JUDGE pnd