Deelip Manohar Deshpande vs Manohar Madhav Deshpande (L.Rs.) ...
2021 Latest Caselaw 13077 Bom

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


                       24 CIVIL APPLICATION NO.9005 OF 2021
                                  IN SA/513/1996


                             DEELIP MANOHAR DESHPANDE.
                                        VERSUS
    MANOHAR MADHAV DESHPANDE, DIED, (L.RS.) SHALINI AND OTHERS
                                           ...
                       Mr. Girish Rane, Advocate for the applicant
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI, J.

                                    ORDER :      14th SEPTEMBER, 2021.


PER COURT :



1               Original plaintiff through legal representatives had filed the

Second Appeal.          Order of admitting the Second Appeal without framing

substantial question of law has been passed on 15.07.1998. It appears that

the appeal was dismissed in between and thereafter by Civil Application for

restoration and by order dated 16.07.2001, the appeal came to be restored.

Thereafter, notices were issued to the appellants for final hearing and it

appears that the appellant No.1 and appellant No.4 were reported to be

dead. Since no steps were taken to bring their legal representatives on

record, the learned Registrar (Judicial) by his order dated 20.08.2014 passed

2 CA_9005_2021

the order of abating the appeal against them. Further, it was stated that

whereabouts of the appellant Nos.3 and 5 were not known and the appellant

No.6 was stated incorrectly, therefore, the notices could not be served on

them. Under such circumstance, the appeal stood dismissed against

appellant Nos.3, 5 and 6. Learned Advocate Mr. Girish Rane is pointing out

that the appeal practically remained between appellant No.2 and the

respondent, who are the same persons. Interestingly the present respondent

was the appellant before the First Appellate Court and while bringing the

legal representatives on record it appears that he himself was also been

brought on record as respondent also. This fact has not been noted by the

concerned First Appellate Court, otherwise in fact, that mistake could have

been corrected at the first appellate stage itself. Original plaintiff was the

father of the present appellant No.2/respondent. The suit was filed for

injunction, which was decreed and then the First Appellate Court, where the

present appellant No.2/respondent was the appellant, has allowed the

appeal. The Judgment and Decree passed by the Trial Court set aside and the

suit was dismissed. However, the legal heirs of the plaintiff were directed not

to be evicted from the suit premises, otherwise than, in due procedure of law.

The appellant before the First Appellate Court was directed to recourse of the

law to recover the possession of the occupied portion demarcated with

words, "b] Q] x] g", by due process of law. That decree passed by the First

3 CA_9005_2021

Appellate Court was under challenge before this Court in Second Appeal.

2 Now, the affidavit has been filed by the present appellant

No.2/respondent stating that after the decision of the First Appeal, the

respondent Nos.1 and 4 left the premises around April, 1998. It was fully

vacant. Since the premises was left unattended and was getting damage, he

had renovated it in 2002 and, therefore, the actual possession of the disputed

property is with him. As aforesaid, the appeal stood dismissed against

appellant Nos.3, 5 and 6 by order of learned Registrar (Judicial) dated

20.08.2014 and stood abated in respect of appellant No.1 and appellant

Nos.4 and reducing the Second Appeal of appellant No.2 and respondent,

who are the same persons, the appeal cannot proceed. Hence, the Civil

Application No.9005 of 2021 stands allowed and the Second Appeal No.513

of 2016 stands disposed of.

( Smt. Vibha Kankanwadi, J. )

agd