Bombay High Court
Dhanraj Shankarrao Bandgar vs Bhalchandra Shankarrao Bandgar ... on 5 August, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
917 SECOND APPEAL NO.849 OF 2012
THE ADMINISTRATOR/COMMISSIONER JALGAON MUNICIPAL
CORPORATION
VERSUS
LOTU TOTARAM BORSE DIED THR LRS ANNAPURNABAI AND ANR
...
Advocate for Appellant : Mr. Gunale V. D.
Advocate for Respondents No.1 and 2 : Mr. H. P. Deshmukh (Absent)
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 05-08-2021.
ORDER :
1. Heard learned Advocate appearing for the appellant. Learned
Advocate for the respondents No.1 and 2 is absent. In fact, for
admitting a second appeal under Section 100 of the Code of Civil
Procedure, it is not necessary to hear the respondent.
2. Here, the respondent No.1 had filed caveat therefore absence of
the learned Advocate for respondent need not be taken into account to
consider as to whether substantial questions of law have been made
out or not.
3. Present appellant is the original defendant. Present respondent
who is original plaintiff had filed suit for permanent injunction
2 SA 849-2012
restraining defendant Corporation (then Nagar Parika) from
disturbing the possession of the plaintiff over the suit plot. The said
suit was dismissed by learned II Joint Civil Judge Junior Division,
Jalgaon on 04-10-2000. It was held that the plaintiff has made
construction in his own plot and has not encroached towards the
North side of his plot. It was further held that the plaintiff has failed
to prove that the employees of the defendant had threatened him to
demolish the suit house or further threatened to acquire his plot.
4. Perusal of the Judgment of the learned Trial Court would show
that there is a clear mention that in the cross-examination the
plaintiff had himself admitted that no such threat was given by the
defendant either orally or by issuing any notice and, therefore, the
learned Trial Judge held that the cause of action for the suit was not
proved. After the plaintiff had preferred Regular Civil Appeal No.103
of 2001 challenging the said Judgment and decree passed by the
learned Trial Judge, it was heard by learned District Judge-II,
Jalgaon, it came to be allowed on 27-09-2011, and a contrary
finding has been given that the plaintiff has proved that the
defendant had threatened to demolish his legal construction. Thus,
there is no concurrent findings on the basic point as to whether
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there was a cause of action for the plaintiff to file suit. Definitely it
is a substantial question of law giving rise to the admission of the
second appeal.
5. In view of above, the appeal is admitted. Following is the
substantial question of law : -
"Whether the learned First Appellate Court erred in
holding that there was cause of action for the plaintiff to
file suit in spite of clear admission given by the plaintiff
in his cross-examination ?"
6. Issue notice to the respondents, returnable 02-09-2021.
7. Since learned Advocate for the respondent is absent, notice is
required to be issued on the party itself.
8. Call for record and proceedings.
(SMT. VIBHA KANKANWADI)
JUDGE
vjg/-
