Shri. Tippanna Annu Solapure And ... vs Shri. Sambhaji Bhau Maske And Ors
2021 Latest Caselaw 9312 Bom

                                                        2-WP-11570-2013.doc


Shailaja


             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION
                        WRIT PETITION NO.11570 OF 2013


Tippanna Annu Solapure and others.             ]       Petitioners
           Vs.
Sambhaji Bhau Maske and others.                ]       Respondents
                                       .....
Mr. Vijay Killedar, for Petitioners.

None present for the Respondents.
                               .....

                               CORAM : PRITHVIRAJ K. CHAVAN, J.

                               DATE    : 15 th JULY, 2021.
                                         [Through Video Conferencing]

P.C.

1. Heard Mr. Killedar, learned Counsel for the petitioners.

2. None appears for the respondents.

3. Challenge in this Petition is to an order dated 2 nd September, 2013 passed by the learned District Judge, Jaysingpur in Misc. Civil Appeal No.56 of 2012.

4. On 5th March, 2014, this Court (Coram: R.M. Savant, J.) has passed the following order;

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2-WP-11570-2013.doc

" Heard Shri Killedar, the learned Counsel appearing for the Petitioners. Issue notice to the Respondents, returnable on 26th March, 2014. In addition to service of notice through Court, the advocate for the Petitioners may serve a private notice by Registered Post A.D. and/or by Courier service and/or by hand delivery to the Respondents and shall file affidavit of service before the returnable date.

2) In view of the narrow controversy involved, the parties are put to notice that the above Writ Petition may be heard and disposed of finally at the stage of admission. In the meantime, there would be ad- interim relief in terms of prayer clause (c)".

5. The petitioners are the original defendants who have been restrained by the impugned judgment from obstructing the rights of the plaintiffs viz; taking the water from the well till the decision of the suit.

6. It is the contention of the learned Counsel for the petitioners that an appeal under Order-XLIII, Rule-1(r) of the Code of Civil Procedure is not tenable in view of the fact that the learned Civil Judge, Junior Division, Kurundwad has not assigned any reason in the sense that the order of the trial Court dated 8 th February, 2012 passed below Exhibit 5 in Regular Civil Suit No.113 of 2011 was not passed on merits. The respondents did not make attempt to restore the said application or to file a fresh application and challenged the said order by filing an appeal.

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2-WP-11570-2013.doc

7. It appears that the suit came to be filed way back in the year 2011 which is pending for more than 10 years. In view of this fact, the Petition can be disposed of by issuing following directions;

(a) Impugned judgment dated 2nd September, 2013 passed in Misc. Civil Appeal No.56 of 2012 is quashed and set aside;

(b) The matter is remanded to the Civil Judge, Junior Division, Kurundwad;

(c) The parties shall appear before the learned Civil Judge, Junior Division, Kurundwad on 2 nd August, 2021;

(d) The learned Civil Judge shall give due opportunities to the respective parties and shall decide the suit on merits as expeditiously as possible, in any case, within a period of one year from the date of this order.

8. The Petition stands disposed of in the aforesaid terms with no order as to costs.

[PRITHVIRAJ K. CHAVAN, J.]

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