Narayan S/O Haribhajan Bhade And ... vs Bandu S/O Bhagwanji Kamdi And ...
2021 Latest Caselaw 14920 Bom

13.SAST.10551.2020.                                                                                            1/2


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

                               Civil Application (CAS) No.209/2021
                                                 IN
                               Second Appeal Stamp No.10551/2020
           Narayan s/o Haribhajan Bhade & Anr. Vs. Bandu s/o Bhagwanji Kamdi & Ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders                               Court's or Judge's Orders
or directions and Registrar's orders.
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                 Shri Rahul Dharmadhikari, Advocate for the Applicants/Appellants.

                 CORAM : S.M. MODAK, J.

DATE : 12th OCTOBER, 2021.

01] Heard learned Advocate for the appellants/original plaintiffs.

02] There is a delay of 174 days in preferring an appeal from an order. By the order dated 31st January, 2020, the first Appellate Court set aside the judgment and remanded the matter to the trial Court.

03] Issue notice to the respondents, returnable on 27th October, 2021.

Civil Application (CAS) No.210/2021

01] Even though four defendants appeared before the trial Court, they have failed to file written statement. Even they have not cross-examined the plaintiffs. On the basis of available evidence, the suit for removal of encroachment was decreed. Defendants Nos.1 to 3 were directed to remove the encroachment. Defendant No.4 is the Grampanchayat, Waghoda. Defendant Nos.1 to 3 have preferred the Regular Civil Appeal No.128/2016.

13.SAST.10551.2020. 2/2

02] With the assistance of learned Advocate for the appellants, I have read the judgment. According to him, there was no justifiable reason for allowing defendant Nos.1 to 3 to file written statement. They have lost the right to file written statement due to their conduct. The first Appellate Court without discussing much on this aspect remanded the suit to the trial Court. The main focus of arguments is on this aspect. Second aspect, on which the judgment of the first Appellate Court is challenged, is the direction to appoint the Court Commissioner.

03] When the observations of the first Appellate Court regarding inconsistencies in the evidence of surveyor are perused, the learned Advocate for the appellants submitted that he will argue later on in detail. As on today, he is not emphasizing on that aspect.

04] Both the parties were directed to appear before the trial Court on 29th February, 2020. There is every possibility that after full-fledged working of the trial Courts after Corona pandemic, the respondent Nos.1 to 3 may file written statement. If it is taken on record, the purpose of filing of this appeal will be frustrated.

05] In view of that, the hearing of the suit is stayed till the next date.

06] Issue notice to the respondents, returnable on 27th October, 2021.

07] The appellants are permitted to serve the contesting respondent Nos.1 to 3 by private mode also in addition to regular mode.

JUDGE

vijay