Sheikh Khurshid Sheikh Daud ... vs Saleha Khanam Mohib Khan
2022 Latest Caselaw 5328 Bom

Order                                                                               36 sa 135-2022
                                                  1

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

                           CIVIL APPLICATION (CAS) NO.417/2022
                                            IN
                               SECOND APPEAL NO.135/2022

    Sheikh Khurshid Sheikh Daud (dead) through LRs Fatemabi Sheikh Khurshid and others
                                           Vs.
                               Saleha Khanam Mohib Khan


Office notes, Office Memoranda of
Coram, appearances, Court's orders                      Court's or Judge's Orders
or directions and Registrar's orders.

                          Shri D.M. Ailani, Advocate for appellants/applicants.

                                        CORAM : S.M. MODAK, J.

DATE : 13/06/2022

Heard learned Advocate for appellant/defendant. He undertakes to remove office objections within a period of two weeks.

2. Farad sheet dated 03/06/2022 also mentions that respondent has filed caveat through learned Advocate Shri Bhakare. Appellant denies about receipt of any caveat notice. The suit filed by the respondent for declaration as to ownership and possession was decreed by Civil Judge Junior Division, Telhara. It was filed on the basis of the sale-deed. Plaintiff was purchaser. Defendant appeared and filed a written statement as well as counter claim. He has denied the sale-deed and also pleaded that plaintiff has attempted to take forcible possession and in that exercise, there was a damage to the house and that is why defendant has made the money claim of Rs.98,300/-

3. The plaintiff gave evidence. Unfortunately, defendant has Order 36 sa 135-2022

neither cross-examined the plaintiff nor gave evidence. Ultimately, suit was decreed. When first appeal was filed, the defendant was having a limited scope. He can take only a limited ground which are available thereby pointing out the lacunas in plaintiff's evidence apart from seeking for remanding of the matter. The First Appellate Court dismissed the appeal therefore, this appeal is filed.

4. The defendant predominantly took two grounds. One is the trial Court has not given sufficient opportunity to give evidence and second is, second suit was not maintainable in view of the dismissal of earlier suit No.56/2002. According to the defendant, though it was brought to the notice of the Trial Court about earlier suit, both the Courts below have not taken cognizance of his ground.

5. My attention is also brought to the averments in paragraph No.6 of the affidavit of examination in chief filed along with the memo of first appeal filed by Saleha Khan that is the original plaintiff. She has mentioned about dismissal of the earlier suit in view of her absence.

6. On this background, when judgments passed by both the Courts below are perused, it is clear that there is no findings on that issue. Even though, defendant has not given any evidence, plaintiff herself has referred to this fact. So I find some substance to frame substantial question of law on this aspect. Hence issue notice before admission to the respondents on following substantial question of law.

"Whether both the Courts below have failed to consider the dismissal of earlier RCS No.56/2002 filed Order 36 sa 135-2022

by the present plaintiff in view of the provisions of Order 9 Rule 9 of Civil Procedure Code."

7. Issue notice before admission to the respondent returnable after five weeks.

CIVIL APPLICATION NO.417/2022

The applicants are likely to take possession of the suit house in execution of a decree. The purpose will be frustrated if decree is not stayed. Even though there is a caveat notice it is not received by the applicants. Applicants must be ready to face the consequences if the respondent will come up with proof of caveat notice.

Be that as it may, it does not prevent the Court from passing interim order if facts and circumstances do warrant. This is such type of case. Hence, the judgment and decree passed by both the Courts below is stayed till appearance of respondent with condition that the appellants should not create any third party interest and should not carry out any construction on the suit property without permission of the Court, returnable after five weeks.

JUDGE R.S. Sahare

Signed By:RANJANA SAMEER SAHARE

Signing Date:13.06.2022 18:15