Machindranath Laxman Mhatre And ... vs Jalindernath Laxman Mhatre Thr. ...
2022 Latest Caselaw 600 Bom

SHAMBHAVI                                                       11-AO-520-2021.odt
NILESH
SHIVGAN
Digitally signed by
SHAMBHAVI NILESH
SHIVGAN
Date: 2022.01.19
                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
16:51:02 +0530
                                        CIVIL APPELLATE JURISDICTION

                                    APPEAL FROM ORDER NO.520 OF 2021
                                                     WITH
                                      INTERIM APPLICATION NO.1278 OF 2021

                      Machindranath Laxman Mhatre and Ors.              ...Appellants
                            Vs
                      Jalindernath Laxman Mhatre
                      THR. POA Holder Atish J. Mhatre
                      & Ors.                                           ... Respondents


                                                   WITH
                                     APPEAL FROM ORDER NO.425 OF 2021
                                                   WITH
                                    INTERIM APPLICATION NO.3285 OF 2021

                      Jalindernath Laxman Mhatre
                      THR. POA Holder Atish J. Mhatre
                      & Ors.                                            ...Appellants
                             Vs
                      State of Maharashtra
                      THR. Collector, Thane & Ors.                      ...Respondents
                                                   ...

Mr. Y.S.Jahagirdar, Sr. Adv. With Mr. K.P.Anilkumar with Mr. Amit Saple i/by Priyanka Kumar for Appellant in AO/520/21 and for applicant in IA/1278/21 and for Respondent Nos.3 to 7 in AO/425/21.

Dr. Abhinav Chandrachud with Mr. J.G.Aradwad (Reddy) with Ms. Ashwini Jadhav for appellant in AO/425/2021 for Respondent NO.1 in AO/520/21 and for Applicant in IA/3285/21.

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Mr. A.R.Patil, AGP for Respondent Nos.2 to 4.

CORAM : SANDEEP K. SHINDE J.

DATE : JANUARY 18, 2022.

P.C. :

Jalindernath Laxman Mhatre instituted Special Civil Suit

No.503 of 2002 in the Court of Civil Judge, Senior Division, Thane

against the Special Land Acquisition Officer, Metro Centre Thane-II,

Machhindranath Laxman Mhatre, (brother of the plaintiff) his three

sons and wife and Land Acquisition Officer, CIDCO, Navi Mumbai

and sought declaration, that;

(i)(a) he is entitled to receive Rs.8,11,324/- from the

defendants with interest @ 15% p.a.

(b) he has 50% share/right in a plot of land allotted to the

defendant nos.3 to 7 in lieu of compensation payable for

acquirising Gat No.212 admeasuring 8 Acres 5 Gunthas, as per

12.5% scheme;

(c) Pending suit, the Land Acquisition Officer, CIDCO be

restrained by order of injunction from allotting Plot No.212 to

anyone;

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          (ii)    On 14th August, 2021, the Civil Judge, Senior Division,

Thane dismissed the Special Civil Suit No.503 of 2002;

(iii) Plaintiff filed Regular Civil Appeal No.334 of 2012 in

the District Court, Thane along with the application below

Exhibit 5;

(iv) On 20th July, 2013, the learned appellate Court rejected

the Exhibit 5 application;

(v) Plaintiff/appellant filed Appeal From Order No.796 of

2013 in this Court against the order dated 20th July, 2013;

(vi) On 14th October, 2013, the Appeal From Order No.796

of 2013 was disposed of in terms of the "Minutes of the

Order". Vide clause (3) of the Minutes, the respondent nos.3

to 7 agreed not to create third party rights in the suit

property and shall keep 50% of the plots allotted to them by

the CIDCO under 12.5 Scheme encumbered till Regular Civil

Appeal No.334 of 2012 is disposed of finally

AND

(vii) On 18th February, 2014, the Civil Appeal No.334 of

2012 was dismissed by the District Court, Thane;

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(viii) Second Appeal No.181 of 2014 was filed by the

appellant/plaintiff in this Court, challenging the order dated

18th February, 2014;

(ix) On 7th April, 2015, this Court in Second Appeal set

aside the judgment and decree passed in Regular Civil

Appeal No.334 of 2012 and remanded the matter back to the

trial Court. In the meantime the interim order passed in

terms of the 'Minutes of the Order' dated 14 th October, 2013

in Appeal From Order No.796 of 2013 was continued

pending the suit;

(x) On 30th June, 2016 the Civil Judge, Senior Division,

Thane dismissed the Special Civil Suit No.503 of 2002;

(xi) Aggrieved by the judgment and decree dated 30 th

June, 2016, plaintiff preferred Regular Civil Appeal No.235

of 2016 along with application below Exhibit 5;

(xii) On 30th November, 2016, Exhibit 5 application was

disposed of in terms of the Undertaking given by the

respondent nos.3 to 7 whereby the order dated 7 th April,

2015 has been continued;

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(xiii) On 26th July, 2019, the District Court at Thane

dismissed the Regular Civil Appeal No.235 of 2016.

Afterwhere, plaintiff filed Second Appeal (L) No.27970 of

2019 in this Court;

(xiv) That by order dated 11th November, 2019 in the

Second Appeal, the judgment and the decree dated 26 th July,

2019 in Civil Appeal No.235 of 2016 was set aside and

remanded the matter back to the trial Court, Thane and

further continued the interim order pending the appeal;

(xv) Paragraph four of the order dated 11 th November,

2019 in Second Appeal (L) No.27970 of 2019 reads as under:

" In the meantime, the order dated 30th November, 2016 in terms of the statement of the respondents shall continue to operate as an interim order pending hearing and final disposal of the appeal. The Second Appeal is disposed of accordingly. District Court at Thane is requested to dispose of this matter as expeditiously as possible and preferably within three months".

2 That vide judgment and order dated 8th February, 2021,

the District Judge, Thane allowed the appeal and remanded the

matter to the Trial Court with, directions, "to frame the issues in

respect of res-judicata and record its findings as per law as early as

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possible more particularly within six months from the date of receipt

of the record and proceedings."

3 Feeling aggrieved by the judgment and order in Regular

Civil Appeal No.235 of 2016, plaintiff preferred an Appeal From

Order under Order 43 Rule 1(u) of the Code of Civil Procedure,

1908. At the time, the defendants, preferred Second Appeal against

the judgment and order dated 8 th February, 2021 passed in Civil

Appeal No.235 of 2016. Later, defendants sought leave to convert the

Second Appeal into the Appeal From Order. Leave was granted and

Second Appeal stood converted in Appeal From Order No.520 of

2021.

4 Heard Mr. Jahagirdar, the learned Senior Counsel for the

appellants in Appeal From Order No.520 of 2021 and Dr. Abhinav

Chandrachud, the learned counsel for the appellants in Appeal From

Order No.425 of 2021 and Mr. A.R.Patil for respondent/State in both

the appeals.

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5          Thus, necessarily, all parties to the appeal were aggrieved

by the 'remand' order passed by the District Court in Regular Civil

Appeal No.235 of 2016.

6 Indisputably, this Court in Second Appeal (L) NO.27970 of

2019 vide order dated 11th November, 2019 passed with the consent

of the parties to the appeal, set aside the impugned order dated 26 th

July, 2019 passed in Civil Appeal No.235 of 2016 and remanded the

Civil Appeal to the District Court, Thane for fresh hearing in

accordance with law. Paragraph 3 of the order dated 11th November,

2016 reads as under;

" Accordingly, the impugned order dated 26th July, 2019 is set aside and the Civil Appeal is remanded to the District Court at Thane for a fresh hearing in accordance with law. District Court will have to decide, in terms, whether decision on the issue of legality by the trial Court in favour of the respondent/defendant is justified or not and give its own reasons for its conclusion on the same."

7 The learned Appellate Court, in-stead, of deciding the

appeal in accordance with the order passed by this Court on 11 th

November, 2019, further, remanded the matter to the trial Court by

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directing to frame the issues in respect of res-judicata. Therefore,

impugned remand order was passed, in defiance of the order passed

by this Court on 11th November, 2019 in Second Appeal (L) No.27970

of 2019.

8 In view of the facts stated above and for the reason, the

impugned order dated 8th February, 2021 in Regular Civil Appeal

No.235 of 2016 passed by the Ad-hoc District Judge-II, Thane is

quashed and set aside and the Civil Appeal No.235 of 2016 is

remanded to the District Court, Thane for fresh hearing in accordance

with law and particularly, in terms of clause (3) of the order dated

11th November, 2019 (re-produced herein-above) passed in Second

Appeal (L) No.27970 of 2019. Having regard to the facts of the case

and particularly that suit was instituted in 2002, the Appellate Court

shall make an endeavour to dispose of the Regular Civil Appeal

No.235 of 2016 on merits preferably on or before 31 st May, 2022.

9 In the meantime, the order dated 30 th November, 2016 in

terms of statement of the respondents, shall continue to operate as

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an interim order pending hearing and final disposal of Civil Appeal

No.235 of 2016.

10 That apart, the learned Appellate Court shall also decide

applications below Exhibits 58, 59, 61 moved by the appellants in

the Appeal No.235 of 2016 in accordance with law.

11 All contentions of the respective parties are kept open.

12 Appellants in Appeal From Order No.520 of 2021 are

entitled to refund of Court-fees paid by them in the Second Appeal,

inadvertently instituted against the impugned order of remand in

accordance with Rules.

13 Both the Appeal From Orders are allowed and disposed of

in the aforesaid terms.

14 All applications in the appeals are disposed of.

                                           (SANDEEP K. SHINDE, J.)


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