Bombay High Court
Manzoor Bashir Ahmad Patel And ... vs Purani Masjid Committee, Chimur ... on 26 October, 2021
Bench: S. M. Modak
Order 17 sa st 8448-2020
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CIVIL APPLICATION (CAS) ST. NO.8451/2020
IN
SECOND APPEAL ST. NO.8448/2020
Manzoor Bashir Ahmad Patel and others
Vs.
Purani Masjid Committee, Chimur through its Trustee Jameel Abdul Rafiq Sheikh and others.
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri Bhushan Dafle, Advocate for appellants.
CORAM : S.M. MODAK, J.
DATE : OCTOBER 26, 2021.
PURSIS NO. 01/2021
Heard learned Advocate for the appellants/defendants.
There is delay of two days in preferring the appeal as per office
objection. Whereas the appellant relied upon the exclusion benefit
granted by the Hon'ble Supreme Court in Suo Motu Writ Petition
No.03/2021 dated 08/03/2021. Copy of said order is annexed to
the pursis. The impugned judgment is delivered on 29/05/2021.
Hence the case of the appellants comes within the purview of
above said direction. Hence the appeal be considered as filed in
time.
The appeal be registered.
SECOND APPEAL ST. NO.8448/2020
There is a request to hear the civil application as there
is an urgency. Orders on the second appeal will be passed once the
appeal will be registered.
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Order 17 sa st 8448-2020
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CIVIL APPLICATION ST. NO.8451/2020
Heard learned Advocate for the appellants. There was
a suit for possession by removal of the encroachment by way of
construction. It was filed by the Trust. Initially it was dismissed.
Suit was held barred by law of limitation. However, the First
Appellate Court has reversed those findings and suit is held within
limitation.
My attention is invited to observations in paragraph
nos.8 and 9 of the judgment. The First Appellate Court had given
the benefit of exclusion clause as per Section 14 of the Limitation
Act. If the party is prosecuting another proceedings in good faith
before correct forum, the period exhausted therein can be
condoned. The grievance of the appellant is that no doubt, there
are proceedings before the Charity Authorities for grant of
injunction, he also admits it. However, when the defendant has
objected on the point of limitation by way of written statement,
the respondents ought to have made out a case on the basis of
provisions of Section 14 of the Limitation act.
According to appellants, unfortunately there is no
foundation in pleadings about the case under Section 14 of the
Limitation Act. The substantial question of law is also proposed on
that aspect. It will be considered once the appeal will come up for
admission.
I have perused the Trial Court and the First Appellate
Court's judgments. Today, I found some merit at least for staying
the execution of the decree. However, when there is a decree by
both the Courts below, the appellants need to compensate the
respondents by paying certain amount monthly. Appellants' claim
that it is being used for personal use. This issue can be considered
once the respondent will appear. Hence the following order:
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Order 17 sa st 8448-2020
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ORDER
i) The interim relief is granted in terms of prayer
clause (I) of the Civil Application till appearance
of the respondents.
ii) The appellants not to part away possession of
the suit structure to anyone in any manner and
not to carry out any more construction.
iii) The issue of putting the condition to pay certain
amount will be considered once the respondents
will appear.
iv) Issue notice to respondents.
v) The matter be kept on 30/11/2021.
vi) Office is directed to place second appeal for
admission on 30/11/2021.
JUDGE
R.S. Sahare
