Bombay High Court
Sau. Shobha W/O. Ramlal Jadhao vs Pralhad Sitaram Lahane And Others on 5 September, 2017
Bench: S.B. Shukre
(Judgment) 0509 AO 30-2016 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH AT NAGPUR.
APPEAL AGAINST ORDER NO. 30/2016
Sau. Shobha W/o Ramlal Jadhao,
Aged major, Occu: Household,
R/o. Shivshankar Nagar, Chikhali Road,
Shakuntal Society, Plot No.8,
Buldana, Tq. & Distt. Buldana. APPELLANT
.....VERSUS.....
1] Pralhad Sitaram Lahane,
Aged major, Occu: Service,
R/o. Lahane Layout, Near Dr. Chinchole
Hospital, Buldana, Tq. & Distt. Buldana.
2] Vasant Sitaram Lahane,
Aged major, Occu: Agriculturist,
3] Ashok Sitaram Lahane,
Aged major, Occu: Agriculturist,
4] Arun Prabhakar Lahane,
Aged major, Occu: Agriculturist,
Nos.2 to 4 R/o. Old Town, Buldana,
Tq. & Distt. Buldana.
5] Sau. Chhaya W/o Atmaram Tayade,
Aged major, Occu: Household,
R/o. Near Ganapati Mandir, Suvarna
Nagar, Buldana, Tq. & Distt. Buldana.
6] Sau. Pushpa W/o Bhagwan Korde,
Aged major, Occu: Household,
R/o. Near Civil Court, Jamner,
Tq. Jamner, Distt. Jalgaon.
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(Judgment) 0509 AO 30-2016 2/8
7] Arjun Bapu Jadhao,
Aged major, R/o. Rahera, Tq. Motala,
Distt. Buldana.
8] Kishor Arjun Jadhao,
Aged major, R/o. Rahera, Post
Rohinkhed, Tq. Motala, Distt. Buldana.
9] Raju Arjun Jadhao,
Aged major, R/o. Rahera, Post
Rohinkhed, Tq. Motala, Distt. Buldana.
10] Sau. Asha Sanjay Gujar,
Aged major, R/o. Dhad,
Tq. & Distt. Buldana.
11] Sau. Jija W/o Sanjay Tayade,
Aged major, R/o. Soygaon,
Tq. & Distt. Buldana.
12] Sheshrao Jahroo Patil,
Aged major, R/o. Pophali,
now R/o. Dindayal Nagar, Nagpur.
13] Sau. Sanjiwani Sheshrao Patil,
Aged major, R/o. Pophali,
now R/o. Dindayal Nagar, Nagpur.
14] Pramod Namdeorao Chinchole,
R/o. Bhadole, Tq. & Distt. Buldana.
15] Sau. Sangita Sanjay Sonune,
Aged major, R/o. Bhadole,
Tq. & Distt. Buldana.
16] Rajendra Avchitrao Pawar,
Aged major, R/o. Padli,
Tq. & Distt. Buldana.
17] Bhalchandra Vaijinath Ajbe,
Aged major, R/o. Chaitanyawadi,
Buldana, Tq. & Distt. Buldana.
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18] Shiwaji Murlidhar Kale,
Aged major, R/o. Dhora Bhangori,
Tq. Chikhali, Distt. Buldana.
19] Vidhya Durgalal Gaur,
Aged major, R/o. Lahane Layout,
Buldana, Tq. & Distt. Buldana.
20] Rajesh Pralhad Lahane,
Aged major, R/o. Lahane Layout,
Buldana, Tq. & Distt. Buldana.
21] Sunil Pandurang Nagrale,
Aged major, Occu: Service,
R/o. Ranjeet Apartment, Buldana,
Tq. & Distt. Buldana.
22] Yogendra Rajendra Gode,
Aged major, Occu: Business,
R/o. Gode Niwas, Chikhali Road,
Buldana, Tq. & Distt. Buldana.
23] Shriram Chatarsing Sapkal,
Aged major, Occu: Contractor,
R/o. Lahane Layout, Ranjeet Apartment,
Buldana, Tq. & Distt. Buldana. RESPONDE NTS
Shri R.L. Khapre, counsel for appellant.
Shri Abhay Sambre, counsel for respondent nos.1 to 4 & 20.
CORAM: S.B. SHUKRE, J.
DATE : SEPTEMBER 05, 2017.
ORAL JUDGMENT :
Heard.
2] Rule. Rule made returnable forthwith.
(Judgment) 0509 AO 30-2016 4/8
3] The application vide Exh.9 was filed under
the provisions of Order 40 Rule 1 of CPC seeking
appointment of receiver to collect the rents from the
hawkers and other persons, who are using the subject
property, which is survey no.3. The use of the property
by the hawkers and other persons is not in dispute and
what is in dispute is as whether such user is, upon some
charge being made for the use of the property by these
persons or free of cost. It is the contention of the
respondent no.1 that the property is being permitted to
be used free of cost but subject to the condition that
after it's use is over, the original status of the property is
restored by the user.
4] Since an interest has been claimed in this
property by the appellant, the original plaintiff and there
is a dispute in respect of such interest of the appellant in
the property as between the appellant and the
respondents, it would be appropriate that the property if
being permitted to be used, may be free of cost, is not
allowed to be used without earning some profit on it as
ultimately earning of profit on the property would enure
(Judgment) 0509 AO 30-2016 5/8
to the advantage of the both of the parties.
5] The learned counsel for the appellant submits
that liberty be granted to the appellant to either make a
suitable application for fixing the license fee or charge or
amend the application vide Exh.9 filed before the
Appellate Court for adding suitable pleadings and
prayer, by remanding the matter to the Appellate Court.
6] The learned counsel for the respondent nos.1
to 4 and 20 submits that this is not necessary as these
contesting parties are ready to disallow the use of the
subject matter henceforth. He also submits that in any
case a prayer for grant of mesne profits has also been
made and that should take care of the interest of the
appellant. I do not think that any harm to the interest of
any of the parties would be caused if the property
being used by the hawkers and other persons free of
cost, at present, is now allowed to be used by charging
appropriate fee or charge from these persons and
depositing the same in the Court. In fact, if such a course
is adopted, it is likely to reduce some of the future work
of parties interested in claiming or liable to pay mesne
(Judgment) 0509 AO 30-2016 6/8
profits, if the need arises in future. If no such need
arises, still this would help in awarding appropriate costs
in the matter.
7] In this view of the matter, I am inclined to
remand the matter to the First Appellate Court for fresh
decision on the application vide Exh.9.
8] In the circumstances, appeal is allowed. The
impugned order is quashed and set aside.
9] The matter is remanded back to the First
Appellate Court for decision afresh on the application
vide Exh.9.
10] Leave to amend the application by making
addition of suitable pleadings and prayer for fixation of
fee or charge and it's deposit in Court is granted, which
leave, however, is confined to only that part of claim
which arises from user of some portion of land by
hawkers, and organisers of exhibitions and other events.
11] The respondents are permitted to furnish
their additional reply to the amended application.
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12] The First Appellate Court is requested, to
decide such application afresh in accordance with law,
within one month from the filing of the additional reply
by the respondents.
13] The first appeal being R.C.A. No. 95/2015
shall also be disposed of expeditiously, preferably within
three months, after deciding the application vide Exh.9
after remand.
14] Necessary amendments to the application
vide Exh.9 shall be made within one week and
additional reply to the same shall be filed within one
week thereafter.
15] The time of one week given for making
amendments to the application vide Exh.9, shall start
from the date of the appearance of the parties.
16] The parties shall appear before the First
Appellate Court on 18/09/2017.
17] The parties are directed to co-operate with
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the First Appellate Court for expeditious disposal of all
proceedings including appeal and shall not seek any
adjournment in the matter, except in the circumstances
beyond control of the parties.
JUDGE
Yenurkar
